—Paola Bergallo, Universidad Torcuato Di Tella, Buenos Aires, Argentina
[Editor’s note: This is one of our I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]
During 2018 thousands of women took over the streets of Argentina demanding the modernization of abortion law. They sought to liberalize a regime dating from 1921 and operating in a constitutional limbo. However, after the Senate defeat of a bill last August, this limbo persists and, in certain provinces, has even worsened. How has the constitutional limbo surrounding the regulation of abortion emerged? What has happened since the defeat? And is it now time for a dialogic move back to the Supreme Court, while waiting for the political conversation to reopen?
Abortion and the constitutional limbo as of 2018. Argentina’s criminal code penalizes abortion and establishes three cases where abortions are “non-punishable”: cases of risk for the health or life of the woman, or in the case of rape. For most of its history, non-punishable abortions provided for in Section 86 of the criminal code have been construed as setting forth criminal excuses but not allowing the supply of legal abortions within the health system. Such supply has been considered totally banned, and since 1994, conservative scholars have argued that it was completely unconstitutional as a result of the recognition of constitutional status to the Inter-American Convention of Human Rights and the International Convention of the Rights of the Child.
Around 2005, this restrictive interpretation of the law began to yield after several provincial courts decided cases where women had requested health services to access Section 86 abortions. The lead of the provincial courts that shifted the meaning of abortion regulation towards a system of indications for legal abortions was also followed later by provincial health departments adopting medical guidelines regulating the provision. This re-interpretation of Section 86 became even stronger in 2012, when the Supreme Court underscored the constitutionality and conventionality of the rape indication in the F.,A.L. case (2012). In that decision, the Justices showed a concern about the lack of access to Section 86 abortions and the prevailing context of barriers and uncertainty affecting women. As a response, the Court insisted that there was no need for a court authorization of the abortion or prior judicial report of the rape. The Justices also urged the medical regulation of the supply of legal abortions (including availability within the public health system), the removal of other obstacles posed by health and legal actors, and the establishment of a regulation of conscientious objection. They also warned that lack of performance of the legal abortions could generate civil, administrative, and criminal liabilities for individuals and international human rights responsibility for the country. The next year in Profamilia (2013), the Court reaffirmed its willingness to support the removal of practices inhibiting access to Section 86 abortions. In this decision, the Justices recommended the investigation of the professional liability of a lawyer, an NGO, and a judge who had colluded to obstruct access to an abortion by a rape victim.
Despite these two Supreme Court precedents and the enactment of several provincial health guidelines and training initiatives, including in 2015 a federally sponsored health protocol, access to legal abortions in most sub-national health systems remained uneven and fragmented by early 2018, when Congress inaugurated the debate about a new bill.
Lifting the political taboo without settling the constitutional limbo. In 2018, constitutional dialogue about abortion spread outwards from the agenda of a growing but not massive number of feminist groups; professionalized NGOs; networks of teachers, social workers, journalists, health providers and lawyers. The debate finally reached the most popular TV shows and every media outlet, the tables of millions of households, and the national Congress.
The year began with street demonstrations and the political move of a coalition of young multiparty female leaders that fostered the presidential invitation to open the congressional debate. In the days that followed, the heads of four congressional House committees negotiated the rules for eight weeks of informative hearings that started in April. The hearings consisted of seven-minute presentations during eight hours a day of recorded informational experiences, opinions, and technical knowledge provided by 635 participants. The constitutional arguments articulated before the House included abundant references to constitutional provisions and court cases; international rules and precedents; proportionality and balancing analyses; comparative law; the history of abortion regulations and practices; intersectionality dimensions regarding abortion and children, adolescents, indigenous women, women with disabilities, LGBTT persons; as well as multiple permutations of law and morality arguments. Moreover, a significant part of these constitutional arguments encompassed references to the connection between law and public health, law and medications, law and politics, legal narratives ending with women’s deaths or lack of access to legal abortions, and further socio-legal data about the formal and informal operation of the rules criminalizing and establishing the legality of abortion in Argentina and abroad.
The House hearings ended with a favorable majority opinion in support of a bill decriminalizing abortion on demand in the first trimester, allowing it in specified circumstances after 14 weeks, and mandating the provision of all legal abortions within the public health system. Between the June 13 and 14, the country followed 144 televised speeches in the floor of the House of Representatives. The bill was passed after a 22-hour session by a narrow majority of 129 to 125 votes. A month later, the Senate began its own hearing process, inviting 143 cultural leaders, citizens, and experts. During seven long days of hearings spread over three weeks, the Senate listened to more extended expert presentations and smaller numbers of advocate and citizens’ voices. Constitutional arguments mirrored those of the House, but included some extended dialogues between guests and questioning Senators. On the dawn of August 9, after several hours and 59 Senate speeches, the bill was defeated by 38 to 31 votes with two abstentions and one absence.
A few years earlier, neither Argentine feminists nor democratic constitutionalists could have imagined such an abrupt escalation of the country’s constitutional conversations about abortion. Much less could they have expected such a sudden lifting of the strong political taboo that reined on the issue over thirty-five years of democratic transition. Nevertheless, the Senate defeat of the bill after such an extended national conversation left a bitter taste. The rejection of the bill had many symbolic and political consequences, including a lost opportunity to settle the constitutional disagreement surrounding the application of the current regulation of abortion.
Absent systemic official federal data on the number of legal abortions provided in all the health systems of the country before and after the debate, it is difficult to assess the actual material consequences of last year’s dialogic round in terms of access to Section 86 abortions. Since August, media coverage of several conflicts suggests a significant backlash in the provision of those abortions, particularly in Northern provinces. There the press has already exposed several convoluted situations where women or girls have been denied legal abortions in cases of rape or risks for their health. Indeed, despite its symbolic import, the 2018 national debate might have actually caused a decrease in the availability of legal abortions in some parts of the country.
What’s next? A new dialogic round? Against such a backdrop, the time may be ripe to follow the suggestion of the opposition Senate Leader, Miguel Angel Pichetto. In his closing remarks before the vote of the bill, the Senator urged the Supreme Court to take up the issue, given the inability of the political community and its leadership to deliver an answer to women’s claims.
The intervention of strong courts and strong remedies in the style of Roe v. Wade has long been highly controversial as a strategy to resolve morally divisive issues. However, the Argentine context cannot be equated with that precedingthe 1974 decision in the US. To begin with, last year the country underwent a large-scale democratic conversation that ended almost with a technical draw and polls showing a 50/50 division. Moreover, the Argentine court would be intervening given the persistence of the constitutional limbo around the current regulation of abortion, a limbo it had unsuccessfully tried to reduce in prior decisions. Such persistence has become intensified by post-defeat resistance to the court’s own interpretation of the current law in F.,A.L.
The Supreme Court could thus approach the conversation as a new round in a dialogic process in which it does not need to have the last word. It can speak only while the political exchange gets reopened, more in the style of the interventions made by the European courts following congressional debates on abortion reform. The Justices could consider some of the cases already on their docket or could apply a per saltum in some of the suits regularly covered by the media since last August that suggest a systematic pattern of rights violations of young, suicidal rape victims or women facing risks to their lives or health.
The Court could evaluate taking incremental steps and deploying weak remedies with more ambition than in F.,A.L.. For instance, on the basis of last year’s broader argumentative developments, the Court could reassess the constitutionality of Section 86 by resorting to the “unworkability” and due process arguments of the Canadian Supreme Court in the Morgenthaler decision (1988). This could be done in the face of new empirical evidence that shows the inability of F., A.L. to foster the provision of legal abortions in the particular (un)rule of law context of Argentina. References to the inefficacy of the criminal law to protect fetal life, such as those noted by the German Federal Constitutional Court in 1993, could also supplement the argument, given the extended empirical evidence presented to Congress about the inefficacy of criminalization. Moreover, in backing these assertions the Court could resort to the multiple congressional statements that accepted the uselessness of the criminal law to protect both fetal and women’s rights, a subject where both opponents and defenders of abortion reform have expressed a consensus.
Suggested citation: Paola Bergallo, Constitutional Dialogues and Abortion Law Reform in Argentina: What’s Next? Int’l J. Const. L. Blog, Feb. 27, 2019, at: http://www.iconnectblog.com/2019/02/constitutional-dialogues-and-abortion-law-reform-in-argentina-whats-next/