COVID-19 Reports on Latin America and the Caribbean: No. 28 (En Español)
The history of the right to terminate a pregnancy in Argentina begins in 1886. In the first Penal Code of 1887 all cases of abortion are penalized without exceptions. In 1903 with the penal code’s reform, a first exemption is established when decriminalizing the cases of attempt to abort. In 1921, after a new reform, other instances are decriminalized (article 86) such as when conducted to protect the mother’s life or health or when pregnancy was the result of sexual abuse or an attack against a mentally ill woman. In 1968, proof of adjudication becomes a necessary condition for all cases of abortion, under law no. 17.567. After a series of back and forth throughout the years, law no. 23.077 in 1984 rolls back the legal framework for abortion to the 1921 Penal Code, where the decriminalized cases were reestablished.
In 2012, Argentina’s Supreme Court decided under its case “F.A.L.” on cases of abortion conducted after sexual abuse. This decision resolves that any woman victim of sexual abuse may terminate her pregnancy without previous judicial authorization and without fear of subsequent criminal charges. The decision also exonerates any doctor executing the abortion procedure. Based on the decision, only a sworn declaration is needed as proof of the crime endured by the victim willing to terminate her pregnancy.
Furthermore in 2015, the country’s Ministry of Health developed the Protocol for the Comprehensive Care of People with a Right to Legally Terminate a Pregnancy (Protocolo ILE in Spanish). This protocol retook the guidelines from the F.A.L decision and included a series of health considerations, be it physical, mental or social.
Let it be law = ¡Qué sea ley!
Having access to legal, safe and free abortion is one of the main demands of women’s movements in Argentina. Articulated since 2005 by the National Campaign to the Right of Legal Abortion, this demand or “cri de guerre” accompanies social protests and it’s also included in the collective “Not One [Woman] Less” (Ni Una Menos in Spanish). Banners, graffiti and the green handkerchiefs are icons of this struggle, despite the fact that the legal proposals did not manage to advance in the country’s Congress until 2020.
In 2018, the Project to Legalize the Voluntary Termination of a Pregnancy (Proyecto de Ley de Interrupción Voluntaria del Embarazo, IVE in Spanish) is presented to Congress. It obtains more than half the votes in the Chamber of Representatives with 129 for and 125 against. However, the project is rejected at the Senate with 38 votes against, 31 for and 2 abstentions.
The proposed law guaranteed the right to abortion within the 14 gestation weeks with only the woman’s consent. The debate polarized the Argentinian society, between those protesting for and against abortion. On one side, there were the light blue handkerchiefs for those against the project, self-defined as defending “two lives” and on the other, the green handkerchiefs with the motto #quesealey (#letitbelaw) advocating for “safe, legal and free” abortion.
The pressure of religious and conservative groups to maintain the status quo on criminalization was particularly strong, with the media accusing its “lobby” to have influenced the vote in the Senate. On May 2019, a new project is presented, known as “The Campaign” (“La Campaña” in Spanish). This new project includes with some modifications from the previous years, for example to consider all women or other identities with the physical capacity to gestate, or not to include the conscientious objection for health professionals.
On November 2020, Argentina’s President, Alberto Fernández announced that he sent the project of Legally Terminating a Pregnancy to the National Congress for its consideration. The text of the project includes both the previous projects as well as some modifications such as including the conscientious objection, to extend up to 10 days the time to guarantee the objection, to criminalize any abortion conducted after 14 weeks for those that are not included in the exempt instances and abortion is included in the obligatory health insurance.
On December 10, the Chamber of Representatives approved the project with 131 votes for, 117 against and 6 abstentions. On December 30, the Senate also approved the project with 38 votes for, 29 against and 1 abstention. It is now the law in Argentina, women who decide to terminate their pregnancy can choose to do it in a legal, safe and free way within the health system.
Undoubtedly, the feminist movement in Argentina achieved a significant victory. However, some legal backlash is expected mainly based on the unconstitutionality of its arguably incongruous agreement with the established superior norms. Therefore, it seems to break with the harmony and hierarchy which must prevail in the Argentine judicial system.
Searching for the middle ground
On November 17, together with the project to Legally Terminate a Pregnancy, another project called Comprehensive Care and Health Treatment during Pregnancy and Early Childhood, known as “Plan for the 1.000 days” was also sent to Congress and it includes care and support for maternity and the first three years of a new born. On December 11, it was approved in the Chamber of Representatives with 196 votes for and on December 30, it was approved unanimously in the Senate.
The new abortion law (Law no. 27.610) and the Plan for the 1.000 days (Law no. 27.611) both help secure rights for people in vulnerable situations and they seek an equilibrium between the decision to voluntarily interrupt a pregnancy and a pregnancy with trust and safety.