Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

Argentina: Supreme Court Decision on Abortion

(Mar. 16, 2012) On March 13, 2012, the Supreme Court of Argentina rendered a decision in the case of an abortion performed on a 15-year-old adolescent, who became pregnant after being abused by her stepfather. (Fallo 259, CSJN [Corte Suprema de Justicia de la Nación] (Mar. 13, 2012), FSAL [the petitioner] s. /Medida Autosatisfactiva). In 2010, the teenager terminated the pregnancy without criminal sanction under a ruling of a Supreme Court of the Province of Chubut. The National Supreme Court has now confirmed the Provincial Supreme Court Decision not to apply criminal liability for abortions performed in cases of rape. (Adrián Ventura,La Corte Exime de Pena a las Mujeres Violadas que Abortan, LA NACIÓN (Mar. 13, 2012).)

The Criminal Code sanctions those who perform abortions, with or without the woman's consent, with imprisonment terms of from one to ten years. (Código Penal de la Nación Argentina [CP] (Nov. 3, 1921), art. 85, INFOLEG (official site).) A woman who causes her own abortion or gives consent for someone else to perform an abortion on her may be punished with an imprisonment term of from one to four years. (CP, art. 88.)

Exemptions to the criminal sanction are provided for physicians who perform abortions in cases in which:

a) the pregnant woman's life or health is at risk; or

b) the pregnancy is the result of a rape or sexual assault of a mentally deficient or insane woman. (CP, art. 86.)

With this decision, the Supreme Court settles longstanding confusion over the interpretation of article 86 of the Criminal Code; in many cases, the article was interpreted as if the exemption would only apply to a disabled woman who was raped or sexually assaulted. The Supreme Court ruling sets a very important precedent that will finally clarify the interpretation of article 86.b, by stating that any woman, competent or disabled, who has been raped may seek an abortion without criminal liability and without any court authorization. (La Corte Exime de Pena a las Mujeres Violadas que Abortan, supra.)

In spite of the exceptions provided for under article 86 of the Criminal Code, cases were frequently found up until now in which sexually abused or raped girls, teenagers, and women werere referred by doctors and hospitals to the courts to seek authorization to have an abortion, even though the law does not require such an authorization. According to the Supreme Court decision, there is no justification for requiring a raped woman to obtain a court authorization for a medical procedure; doing so places an extra burden on the woman when she is only requesting an abortion that is already authorized by law. Compliance with the law is a professional duty, the Court stated, and its violation may be subject to legal sanctions. This applies when a physician refuses, without any reason for such refusal, to verify the exceptional grounds that allow legal abortions under article 86 of the Criminal Code. (Id.)

The Catholic Church in Argentina has expressed its firm opposition to the Supreme Court's decision. The Church asserts the belief that there is no justification for the termination of an innocent life, even when the life is the result of a rape. (Mariano De Vedia, Rechaza la Iglesia el Fallo Sobre el Aborto, LA NACIÓN (Mar. 14, 2012).)