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Abortion Debate: Following Defeat in the Senate, What Does the Future Hold?

Decriminalization in the new criminal code and legalization in the future.

By | [email protected] | August 9, 2018 1:54pm

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The bill that would have legalized abortion was defeated in the Senate yesterday.

But the debate is far from over. Having occupied the forefront of the public conversation, it has been installed as the next right to be conquered by women and will be a central issue in the different areas of the political and social landscape it reaches. That’s why both legalization advocates and the government have already begun to discuss different alternatives to move forward in the near future.

The next step seems to be decriminalizing abortions in the upcoming criminal code debate. However, it’s a given that legalization will be a key issue of the 2019 electoral campaigns, and a bill will be introduced again in 2020, once Argentines vote to renew a third of the Senate and half the Lower House.

Moreover, a Cambiemos deputy suggested the possibility of holding a binding referendum, but the initiative was struck down by Cabinet Chief Marcos Peña this morning.

Decriminalization

Even before the bill was officially defeated, media began reporting that the Macri administration intended to include the decriminalization of abortion as part of its broader initiative to reform the country’s criminal code. The decision was confirmed by Marcos Peña this morning.

Marcos Peña in London this week. (Photo via Clarín)

This is the first sign from the Executive branch of being in favor of expanding women’s right to choose over their own bodies, although to a lesser extent than the legalization bill.

Earlier in the morning, President Mauricio Macri weighed in on the debate’s outcome by saying that the State needs to conduct structural reforms to tackle the issue, as “the underlying problem will not change with one law.”

“We have problems that as a society we need to solve, we have more than 100,000 children who are born from unwanted teenage pregnancies. We want for those girls to have the possibility to choose, to plan their lives, because some even think that they are meant to have a child, when they don’t know what that means. Let’s empower young women by teaching them about the consequences of the decisions they make,” Macri told press.

Senators Omar Perotti and Lucila Crexell proposed voting a similar alternative to the original bill yesterday, but did not reach the necessary consensus. Both of them ended up abstaining from the vote.

Decriminalizing abortion would mean judges would be able to reject pressing charges against a woman for having an abortion. However, women would still only be able to resort to the public health system if their particular cases fit into the exceptions described by the current criminal code and the 2012 Supreme Court “FAL” ruling: when the pregnancy is a result of rape, or when it represents a health risk for the woman’s health.

The “FAL” ruling also outlines a protocol that makes it easier for women whose cases fit the description to access legal abortions. The only requirement to access an abortion when the pregnancy is the result of rape or abuse is a signed affidavit from the victim declaring that is the case. “There’s no need for a formal complaint of the rape to authorities,” the protocol explains. “A judicial authorization is not necessary to perform the termination. A doctor confirming the case fits in one of the allowed causes is enough.”

When it comes to the health of the mother, the confirmation of illness is not required and there is no threshold of what a “danger” entails. The possibility of a potential risk to the woman’s health is enough and it is the person who decides what kind of risk she’s willing to take.

The difference between turning the ruling into a criminal code article and its current state is the fact that many jurisdictions have refrained from putting it into effect. This would no longer be the case if the reform is passed.

Photo via Senado de la Nación

La Nación reported that, according to figures from the Ministry of Justice and Human Rights Ministry, 63 people were convicted of different crimes related to abortion between 2007 and 2016. Perhaps the most emblematic case was that of “Belén,” who in 2014 was sentenced to eight years in prison, accused of killing her child after having miscarriage in a Tucumán hospital. In March 2017, the Provincial Supreme Court acquitted and released her after concluding her arrest was illegal.

The government is set to begin debating the bill in different Senate commissions before the end of the month.

Binding Referendum

Cambiemos Deputy Daniel Lipovetzky, president of the Lower House’s commission of Health and a staunch advocate of legalization, suggested yesterday the possibility of holding a binding referendum to, similar to what happened in Ireland earlier this year, decide whether this right should be enacted or not.

“When parliamentary representation is divided, it is a good tool to have the citizens vote directly,” he said in a TV interview. Although next year’s elections could be a suitable scenario, as the people will go to the polls anyway, Cabinet Chief Peña ruled out the possibility today. “We are focusing on working on the consensus generated and implement public policies that go in accordance with that consensus.”

However, the outcome of a referendum would have been unclear, as different surveys conducted during the past month show contrasting results. One from the Universidad de San Martín indicates that, out of the 1,000 surveys conducted among people between 18 and 65 years of age, 49 percent is against legalization and 40 in favor. However, one from Córdoba y Asociados shows that 51.2 percent of the 1,200 people it consulted approve of legalization, while 44.1 percent reject it. The poll also highlights the relevant effect the debate and all that surrounded it had in the subjects: in March this year, support for legalization was over 65 percent, and detractors were under 30 percent.

2019 Elections

As mentioned, the debate has secured a permanent spot at the forefront of the political debate. In past campaigns, politicians were able to avoid giving their opinion on this sensitive issue, but that does not seem to be the case anymore: the debate will likely play a relevant role in the 2019 campaign.

This will represent a problem for the largest political parties, which experienced unprecedented internal divisions in this debate – with Cambiemos at the top. However, whoever manages to adopt a cohesive stance will be able to capitalize – and perhaps lose – a large deal of votes from people who will consider it an absolutely determining factor at the time of casting their vote.