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Criminal Code Reform Postponed As Abortion Decriminalization Causes Internal Rifts

One sector wants to reduce the sanction, another wants actual decriminalization.

By | [email protected] | August 17, 2018 11:24am

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The government has decided to postpone introducing the reform to the criminal code due to internal rifts concerning the legal character abortions – still clandestine – should entail. While one camp favors decriminalization, its antagonists argue that it should be reduced from the current state, which ranges between one and four years, to between one and three.

In regards to the latter camp’s argument, the difference lies in the fact that in Argentina, convicted felons are only sent to prison if they receive a sentence of more than three years. Therefore, there would be no chance for women to go to prison for having an abortion, but the legal system would still consider that they’ve committed a crime.

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. Nearly three years later, in March 2017, the Provincial Supreme Court acquitted and released her after concluding her arrest was illegal.

The camp advocating for decriminalization, in contrast, proposed to eliminate the article concerning abortion, or at least establish that it will not be a crime to terminate a pregnancy until the 14th week of gestation when it is a result of a cause different to the exceptions already established in the current code: that is, when it is a result of rape or represents a serious risk to the woman’s life.

The head of the commission that drafted the bill, Federal Judge Mariano Borinsky, defended the inclusion of the article saying it would also add mental health risks as a cause in which abortions would not be criminalized, in accordance with parameters established by the World Health Organization.

Página 12 explains that this set of standards were already included by the Health Ministry in a protocol for non-punishable abortions in 2015 and indicates that, regardless of this, the UN agency highlights the need to completely decriminalize abortion and discuss it as a public health issue.

Mariano Borinsky. Photo via Perfil

The difference between the two stances also impacts the access to abortions. Reducing the sentence would mean performing abortions would still be a crime, something that would prompt many doctors to keep refusing to do so, fearing criminal convictions. At the same time, the cost of the procedures would continue to be high, given the legal risk those performing abortions would be incurring.

Even if it were to be completely decriminalized, 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. And perhaps the new exception suggested by Borinsky.

Ever since the bill that would have legalized abortion was defeated in the Senate on August 8th, three women died for complications arising from a clandestine abortions.

When confirming the Executive Branch’s intention of including decriminalization on the reform bill, President Mauricio Macri said “we have problems that as a society need to be solved; we have more than 100,000 children who are born as a result of 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 added.

Government sources told La Nación that it aims to introduce the reform before the end of the year.