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Buenos Aires Supreme Court Brings Back Restrictions for Non-Punishable Abortions

It dismissed a court ruling that considered the protocol to be unconstitutional.

By | [email protected] | October 19, 2018 11:12am

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The City of Buenos Aires’ Superior Tribunal of Justice (TSJ) – the highest court in the district – issued yesterday a regressive ruling for women and human rights: it dismissed a lower court ruling that declared that a protocol establishing restrictions to the necessary requisites to get a legal abortion in the City was unconstitutional.

The protocol was created by the city’s Health Minister Jorge Lemus in late 2012, back when President Mauricio Macri was mayor of Buenos Aires, and was a direct response to the landmark Supreme Court “FAL” ruling, which in March of that same year had set standards for the access to legal abortions, compelling the country’s 24 jurisdictions to abide by them.

Going against the ruling, this protocol determines that abortion in cases of rape have to be performed within a twelve-week threshold, as opposed to the FAL ruling, which did not establish a time limit. In the other reason for a non-punishable abortion – which has been considered a reason to allow abortions in Argentina since 1921, and that is if the pregnancy presents a danger to the mother’s life – the protocol also requires public hospital authorities to prove that the pregnancy that a mother intends to terminate would present a grave danger to the her life or health. Moreover, in cases when a mentally challenged person would require an abortion, the protocol says that the hospital would need proof of disability, something that goes against international treaties on the matter.

All cases would also require the intervention of an inter-disciplinary team at the hospital and the confirmation of their diagnosis by the institution’s highest authority. Minors would need their parents’ authorization. The Supreme Court, in contrast, only required people to sign an affidavit if they were to have an abortion as a result of a rape, and the authorization of a single professional when it represented a risk to life.

In September of 2012, the City Legislature passed a law whereby its public and private health system would abide by the “FAL” ruling. However, then-mayor Macri vetoed the law shortly after, thus enforcing the protocol. The decision led constitutional lawyer and then-lawmaker María Rachid to file an injunction, challenging Macri. A court then determined the veto was unconstitutional, but after an appeal from the government and with an Appeals Court, and now the City’s Supreme Court both overruling this decision, the protocol has been upheld.

On its recent ruling, the TSJ did not make reference to the protocol or its legality, but focused on a procedural aspect of the injunction. It determined that the ruling upholding its unconstitutionality was “poorly granted,” because the injunctions were abstract: that is, they were not filed as a result of a particular case in which a woman was prevented from accessing a non-punishable abortion as a result of the protocol’s restrictions. Without the possibility of reviewing a case, they could not declare its unconstitutionality.

Nonetheless, the TSJ ruling also indicates that “should a person’s right be in imminent and certain danger” as a result of the protocol, people can “appear before the judiciary to have them protected.” However, this means that women who conclude that there are real chances of not getting a non-punishable abortion due to the protocol’s restrictiveness would have to file respective injunctions, and wait for a court to conclude their rights are being violated in order to access the procedure.