Abortion was legalized up to the 14th week of pregnancy on 30 December 2020. This is the first change in the abortion law dating from 1921, that previously only allowed for termination of the pregnancy in case of rape or if the pregnant woman’s health was in grave danger. The Ministry of Health has previously estimated that at least 350,000 illegal abortions are performed in Argentina every year, with international organizations working for greater reproductive health stating that the number is even higher. Around 38,000 women need hospitalization every year after a botched termination. The Argentinian President, Alberto Fernández, estimates that over 3,000 women have died as the result of clandestine and unsafe abortions between 1983 and 2020.
The legislative change comes as a result of the long struggle of the grassroots women’s movement, mass protesting in the streets in green shawls, with the color green representing the fight for women’s rights in a broad sense. The movement began as a Twitter campaign focusing on gender violence towards women that might have a deadly result, using the hashtag #NiUnaMenos (Not One Less). The initial spontaneous protest was in reaction to the death of a pregnant 14-year-old girl named Chiara Páez, who was found dead under the house of her boyfriend. This sparked a larger debate amongst Argentinian feminists and a mass protest in Buenos Aires that brought tens of thousands of women to the congressional square on 3 June 2015.
This bill to decriminalize abortion was first introduced in 2018, but due to pressures of the Catholic Church, the Senate voted in disfavor of the proposed bill. There were several protestors in the streets of Buenos Aires, the women’s movement in green, and the clergy and lay-men and -women in baby blue. Although it was a setback for the green-clad feminists, the protestors promised they would be back and remained optimistic about the movement’s future potential. The second chance of a bill that would legalize abortion came around in 2020, and with the support of the President and a greater support for the bill and the centrality of the grassroot feminist movement – legislation was a fact.
The Argentine abortion law that was repealed with the 2020 bill has existed since 1921. However, the first abortion legislation dates back to 1887. This Penal Code established sanctions for the practice of pregnancy termination in absolutely all cases, punishing the act with a prison sentence. There were some changes introduced in 1919, influenced by the Swiss Penal Code. Here, certain causes were included in the Penal Code. While articles 85, 87 and 88 list the different figures of the crime of abortion and their corresponding penalties, article 86 establishes the reasons why abortion performed by a medical professional with the consent of the woman will not be considered punishable:
ARTICLE 86: The doctors, surgeons, midwives or pharmacists who abuse their science or art to cause the abortion or cooperate will incur the penalties established in the previous article and will also suffer special disqualification for double the time of the sentence to cause it. Abortion practiced by a registered doctor with the consent of the pregnant woman is not punishable:
1 If it has been done in order to avoid a danger to the life or health of the mother and if this danger cannot be avoided by other means.
2 If the pregnancy comes from a rape or an attack on the modesty committed on an idiot or insane woman. In this case, the consent of the legal representative must be required for the abortion.
The drafting of the original text of the law gave rise to a historical discussion that has only hindered access to cases of non-punishable abortion, despite its almost centennial validity. For decades, the scope of subsection 1 and subsection 2 was debated. Some interpreted that abortion was declared not punishable when the pregnancy was a consequence of rape (in any of the forms provided in the Penal Code); others stated that reference was only made to pregnancies resulting from rape "of an idiot or insane woman".
On March 13, 2012, the Supreme Court of Justice of the Nation (CSJN) issued the ruling known as "FAL", which definitively settled this long discussion, ruling in favor of the interpretation that recognizes the right of every female victim of rape to terminate the pregnancy if originated in such circumstances, and not only in the cases of people with mental disabilities. In turn, it establishes that the only requirement to access a legal termination of pregnancy is that the woman, or her legal representative, make an affidavit stating that the pregnancy is the result of rape. A police report or court order is not necessary, and no one can demand them.
On the other hand, in relation to the cause of "danger to health or life", it was indicated that an integral vision of health should be considered as "a complete state of physical, psychological and social well-being, and not only the absence of diseases or conditions” (World Health Organization). In accordance with the "Protocol for the comprehensive care of people with the right to the legal termination of pregnancy", which is mandatory in all Argentine territory by all health institutions, both public and private, the "danger to health" includes also psychological pain and mental suffering associated with loss of personal integrity and self-esteem.
This ruling marked a turning point in the recognition of the right of women to the legal termination of pregnancy. In addition, it clarified the general framework of interpretation and application, and defined that in the described circumstances it is always the State, as guarantor of the health administration, which has the obligation "to make available to those who request the practice, the conditions medical and hygienic necessary to carry it out quickly, easily and safely. Quick, since it must be borne in mind that in this type of medical intervention, any delay can lead to serious risks to the life or health of the pregnant woman. Accessible and safe because, even when legal as decriminalized, there should be no medical-bureaucratic or judicial obstacles to accessing the aforementioned provision that put the health or life of the person claiming it at risk” (CSJN, 2012: considering 25). In turn, the ruling expresses that every health professional has the right to exercise conscientious objection, as long as it does not translate into delay, delay or impediment to access this medical practice. In turn, conscientious objection is always individual and not institutional.
Eight years after the exhortation made by the CSJN, only nine of the twenty-four jurisdictions have care protocols for non-punishable abortions (Chubut, Misiones, Santa Cruz, Chaco, Jujuy, La Rioja, Santa Fe and Tierra del Fuego), being the Autonomous City of Buenos Aires, the last to adhere to the ILE (Legal Termination of Pregnancy) with its own protocol sanctioned in July 2020 in quarantine by the COVID-19 pandemic. Seven others (Province of Buenos Aires, Entre Ríos, La Pampa, Córdoba, Neuquén, Río Negro and Salta) issued protocols with requirements that hinder women's access to safe abortion services. And eight jurisdictions (Catamarca, Corrientes, Formosa, Mendoza, San Juan, San Luis, Santiago del Estero and Tucumán) have not issued any protocol. In other words, more than half of the country's jurisdictions still do not have regulations that effectively ensure the exercise of a right that women have had since 1921.
Although the dictatorship was defeated (1976-1983), and the Women's Movement organized several articulations (Commission for Abortion, National Assembly for the right to decide, etc.), it was only in 2005 that it was able to achieve massive social support for the demand for the right to Voluntary Interruption of Pregnancy (IVE) with the national Campaign for the Right to Legal, Safe and Free Abortion.
In January 2021, the bill has only been approved for a couple of days. It remains to be seen how this will be implemented and how accessible it is for women in all of Argentina. Some opponents of the new law have said that they will still fight vigorously when it is time for it to be implemented.
Many activists and researchers, seeing as Argentina is the home of Pope Francis, hope that this legalization in South America’s second largest nation, will trigger a wave of movement for abortion liberalization across the conservative, mostly Catholic, region. Giselle Carino, an activist in the feminist movement has pointed out parallel struggles in Brazil, Chile, and Colombia. This liberalization sends out hope and inspiration for women living in countries with restrictive abortion legislation.
Written by: Tilla Solli for The Women's Museum of Norway
Information collected by the Women's Museum in Buenos Aires, Argentina
BBC News. (2020, December 30). Argentina abortion: Senate approves legalisation in historic decision. Retrieved January 3, 2021, from https://www.bbc.com/news/world-latin-america-55475036
Misculin, N. (2020, December 30). “We did it, sisters”: Argentina Senate votes to legalize abortion.Reuters. Retrieved January 3, 2021, from https://www.reuters.com/article/us-argentina-abortion-idUSKBN2940LG
Phillips, T., & Goñi, U. (2020, December 31). Argentina legalises abortion in landmark moment for women’s rights.The Guardian. Retrieved January 3, 2021, from https://www.theguardian.com/world/2020/dec/30/argentina-legalises-abortion-in-landmark-moment-for-womens-rights
Squires, S. (2018, August 9). Argentina Senate rejects measure to legalize abortion. Reuters. Retrieved January 3, 2021, from https://www.reuters.com/article/us-argentina-abortion-idUSKBN1KU0KL