A fifteen-year old teenager became pregnant as a result of being sexually abused by her stepfather. In the eight week of pregnancy, through her legal representative, she asked the judiciary to order doctors of a public hospital to perform her abortion. She based her claim on article 86. 2 of the National Criminal Code (the “Criminal Code”) which stated that abortion was legal when a pregnancy was a result from a sexual abuse or a sexual attack against a mentally impaired woman. The plaintiff request judicial authorization for the performance of the legal abortion with the First Instance Criminal Court of Chubut which held that it was not competent to solve the case and sent the case to the Family First Instance Court that dismissed the claim because it interpreted that article 86.2 only applied legal abortion to mentally disabled women. The Court of Appeal of Comodoro Rivadavia[Cámara de Apelaciones de Comodoro Rivadavia, Sala B] confirmed the previous judgement.
The plaintiff filed an appeal with the Superior Court of Justice of the Province of Chubut in the twentieth week of pregnancy which was admitted because it interpreted article 86.2 in a broader way: legal abortion could be performed in any victim of rape, not only in mentally disabled women and therefore authorized the legal abortion.
After the abortion was performed, the public defender, representing the fetus, appealed the ruling before the Supreme Court of Justice. He argued that the right to life of the fetus had been violated.
The Supreme Court of Justice held that, under any possible interpretation of its content, article 86.2 of the Criminal Code established the lawfulness of the interruption of pregnancies that derived from a sexual abuse to any woman. The mental condition of the woman was irrelevant: any woman, mentally impaired or not, who became pregnant as a result of a sexual abuse was legally entitled to request her doctors to perform her abortion. The Court considered that such interpretation was compatible with the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights "Pact of San Jose, Costa Rica", because, according to the Court, the provisions of these conventions had been expressly configured in order to allow abortions such as the one requested in this case. As far as article 6 of the International Covenant on Civil and Political Rights was concerned, the Court referred to the opinion of the United Nations Committee on Human Rights which had expressed its concern about the restrictive interpretation that local tribunals had given to article 86.2 of the Criminal Code.
Moreover, the Court expressed that forcing a woman who had suffered a sexual abuse to carry a pregnancy to full term was out of proportion, infringed the woman´s right to dignity and amounted to “institutional violence”.
When a woman who had been sexually abused requests a doctor to perform her abortion, the doctor usually requested the woman to get an order from the judiciary authorizing the abortion. The Court expressly referred to this practice and held that it was unnecessary, illegal and contrary to the National Constitution, because it forced the woman to expose her private life and created a risk to her right to health and her right to interrupt her pregnancy safely. As a result, the Court held that the woman cannot and must not be forced by her doctors to request an authorization from the judiciary to interrupt her pregnancy.
Finally, the Court described the obligations of the State. It held that the Federal State had the duty to provide the woman with the medical conditions that were necessary to perform the abortion quickly and safely. Moreover, national and provincial authorities were required to implement medical protocols or codes of behavior regarding the performance of lawful abortions in order to remove any administrative or de facto barriers to the access to this kind of medical service. Among other considerations, such authorities were required to contemplate guidelines guaranteeing information and confidentiality to the woman and the absence of any requirement, such as the request of an authorization from the judiciary, which created unnecessary delays.
