International Federation for Human Rights - How did Argentina secure the legalisation of abortion?
Julieta Molina - The historic struggle of the women’s and feminist movement led to the creation of the Federal Alliance of the National Campaign for the Right to Legal, Safe and Free Abortion. As a result, on 30 December 2020, Law 27.610 on pregnancy termination was passed. The country thus took its first steps towards voluntary legalisation and moved away from the persecution and criminalisation that thousands of people had suffered. The case of Belén, a young woman jailed for having had a miscarriage, is symbolic of the situation in the past.
FIDH - What exactly does the law say?
J.M - Pregnant people can now freely access an abortion, up to and including the 14th week of gestation, not only if the pregnancy is the result of rape or if the person’s life or health is in danger. Health is understood here in a broad sense, according to the WHO definition and the terms used in the F.A.L. ruling by the Supreme Court of Argentina. This law is nationally binding and pregnant people aged 16 years and over can access abortion and decide for themselves. Furthermore, girls aged 13 to 16 years must be accompanied by their legal guardian in cases requiring hospitalisation, and those aged below 13 years must always be accompanied by their legal guardian. Signed written consent must be obtained in all cases.
FIDH - Do provisions exist for conscientious objectors?
J.M - Post-abortion care is covered for anyone wishing to terminate their pregnancy. However, the law mentions that individuals who directly perform the intervention have the right to object on the grounds of conscience. In all cases, though, they must inform the people of their right to an abortion and direct them immediately to a health professional who can guarantee to carry out the intervention. The right to conscientious objection is waived where a pregnant individual’s life or health is in danger,and immediate and urgent attention is required. Any action to impede or refusal to perform an abortion can be reported via a national, confidential freephone service, and results in the person concerned being sanctioned. Whatever the situation, the right to abortion must be guaranteed in practice.
FIDH - Was there opposition in response to the law’s adoption?
J.M - After the law was passed, anti-rights judges in some provinces tried to use the courts to declare it unconstitutional, which prompted debate about the system of constitutional control. One reason these attempts failed is that, in Argentina,no process can be engaged in with the sole aim of examining the constitutionality of a norm. Consequently, a declaration of unconstitutionality has limited impact. Declaring that a law is contrary to the Constitution does not repeal it; it only ceases to apply in that particular case. Furthermore, the country has ratified numerous international conventions which cannot be ignored, such as the recommendations of international human rights organisationsto which it is party. These rulings were destined to fail, and the law remains in force throughout the country.
FIDH - What are the challenges that have to be met today for the law to be genuinely effective in Argentina?
J.M - One of the challenges now is to work for comprehensive sex education so that everyone in the country knows their sexual and reproductive rights and their right to a free and safe abortion. Another important challenge is to train all institutions and individuals within the healthcare system, given that access to abortion is a human right and, conversely, forcing a person to give birth is a form of torture.