On February 22, the President of Argentina, Mauricio Macri, announced that the country’s legislature will debate a bill that would decriminalize abortion on broader grounds. Currently, abortion is only legal when the pregnancy poses a risk to women’s life or health and in case of rape, as established by Argentina’s Criminal Code and the 2012 case F., A.L. s/medida autosatisfactiva. Under all other circumstances, abortion is criminalized.
Further decriminalization of abortion by the legislature has enormous potential to advance the health and protect the rights of women and girls throughout the country, particularly given the many barriers they currently face when attempting to access legal abortions.
One of the main barriers is the inconsistent and inadequate application of the country’s abortion law at the provincial level. Argentina is made up of 24 jurisdictions (23 provinces and the city of Buenos Aires) and each has taken a different approach to adopting the Ministry of Health’s national protocol related to the provision of comprehensive legal abortion services (Protocolo para la atención integral de las personas con derecho a la interrupción legal del embarazo, in Spanish).
Despite the fact that the national protocol provides clear guidance to the provinces regarding proper implementation of the abortion law and requires the provinces to refrain from imposing obstacles that hinder women and girl’s access to legal abortions, it does not have binding legal force, as provincial governments in Argentina maintain complete autonomy over the adoption of health-related policies.
- 8 provinces (namely, Chaco, Chubut, La Rioja, Jujuy, Misiones, Santa Cruz, Santa Fe, and Tierra del Fuego) have adopted protocols that are in line with the national protocol’s guidelines.
- 8 jurisdictions (namely, Ciudad Autónoma de Buenos Aires, Buenos Aires, Entre Ríos, Córdoba, La Pampa, Neuquén, Río Negro, and Salta) have adopted protocols that are not in line with the national protocol’s guidelines, unduly restricting access to legal abortion by establishing gestational limits, requiring consent from parents or legal guardians for women under the age of 18, and/or involving interdisciplinary teams in determinations as to whether or not a pregnancy is the result of a rape.
- 8 jurisdictions (namely, Catamarca, Corrientes, Formosa, Mendoza, San Juan, San Luis, Tucumán, and Santiago del Estero) have not adopted a protocol that regulates the provision of comprehensive legal abortion services, making it easier for health providers to impose arbitrary obstacles that ultimately hinder access.
At least one of the provincial protocols, moreover, is no longer in effect. In Córdoba, a catholic association challenged the province’s protocol, alleging that it violated the province’s constitutional protection of life from conception. A lower court found in favor of the plaintiffs and suspended the provision of abortion by provincial health centers in cases of rape. The Court of Appeals went even further, declaring the entire protocol to be unconstitutional. It also determined that the Supreme Court’s decision in the FAL case, which required each jurisdiction to adopt implementing regulations related to the provision of legal abortion, did not constitute binding precedent for the lower courts.
Women and girls in Argentina face numerous barriers to accessing safe abortions, not only because of the current law’s limited scope, but also because of difficulties associated with its implementation at the provincial level. Let’s hope that the upcoming legislative debate results in broader decriminalization, greater access, and improved health outcomes throughout the country.