By Stefano Gennarini, J.D.
NEW YORK, March 30 (C-FAM) In a surprising ruling, the Supreme Court of Argentina has declared abortion is a woman’s right in case of rape under international law. Under the ruling health service providers would be required to provide abortions “immediately and expeditiously” when a woman claims that her pregnancy is the result of rape.
The Court affirmed a lower court ruling that the Argentine penal code allows women to obtain an abortion in case of rape and without a judicial order. The case involved a 15-year-old-girl who claimed she became pregnant as a result of rape by her mother’s husband.
Though Argentina’s Constitution is silent on the rights of the unborn, legal professionals and government officials are nonetheless shocked by the decision. As recently as 2001 the same court recognized the right to life of unborn human beings from the moment of conception in the Portal de Belen decision that banned the morning-after pill.
The Argentine court argued it was bound to interpret its penal code to “harmonize” its national laws with what they consider to be Argentina’s international treaty obligations. By itself this is not controversial in Argentina where international law is incorporated into the Constitution and judicial activism is typical.
The court found an international right to abortion in cases of rape in the recommendations to Argentina by UN treaty bodies charged with monitoring the implementation of the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child, as well as the general opinions of the World Health Organization.
Legal scholars and other experts say such an interpretation is erroneous. According to the San Jose Articles, a document drafted by more than 30 experts in international law, no UN body can claim that abortion is a human right in any circumstance because there is no international law recognizing abortion. No international treaty even mentions abortion. When UN bodies claim an international right to abortion they exceed their mandate.
Legal experts point out that in fact, UN treaties contain provisions that should be used, if at all, to protect the unborn from abortion. Instead, the Argentine court painstakingly went through several treaty provisions to deny that international instruments should be used to protect the rights of the unborn.
Prior to the Argentine decision, the only Latin American court to ascribe any binding authority to UN treaty body opinions that create a right to abortion was the Supreme Court of Colombia in a 2006 ruling. The high courts of Chile, Mexico, and Peru have refused to accord any binding authority to these opinions of UN treaty bodies.
The decision’s aftermath will be even more significant than the decision itself. Unlike the rulings of the US Supreme Court, the highest court in Argentina can only decide individual cases, and these do not create binding precedents. But the decision can gain more importance if it is opposed or endorsed by politicians, lower courts and the media.
The governors of the provinces of Mendoza and Salta reacted by denouncing the Court’s decision as erroneous and invalid because it gives UN bodies more authority than they have.
The ruling has inevitably galvanized abortion advocates. A draft bill that would legalize abortion in the first 12 weeks of pregnancy is already being proposed in the Argentine legislature. It is uncertain whether the bill will appear before the legislature. A similar bill failed during the last session.