Posted on | March 15, 2012 by Timothy Herrmann |
I will elaborate on a previous post written by my colleague Stefano Gennarini and highlight some important nuances related to the recent judicial decision to liberalize Argentina’s abortion law.
First, before Tuesday’s ruling abortion in Argentina was allowed only in cases of rape and where the life of the mother was at risk. However, it should be pointed out that judges often interpreted the law, at least in the case of rape, to mean that abortion was only legal when it was shown that the mother was mentally unstable. Following Tuesday’s ruling, mental instability is no longer a requirement. In any situation in which rape results in pregnancy, it is now solely up to the woman and her doctor to decide whether to abort her child.
Second, in Latin America it is common for judges to make the final ruling on whether or not an abortion was carried out legally or illegally in all cases. After yesterday’s ruling, the judge’s role in determining the legality of abortion in Argentina has been effectively marginalized. Whether or not abortion is “required” because the life of the mother is at risk or because of rape will now freely be determined by the woman and her doctor. The main concern is obviously that mental and physical “health” are now open to far looser interpretation and restriction than they were before. This is to say that the real problem with Tuesday’s ruling is the loose way in which abortion laws and penalization are now capable of being interpreted.
Lastly, it is also important to point out that in Tuesday’s ruling it was also emphasized that, in the court’s view, though neither the Argentinean constitution nor international law expressly prohibit abortion, they do expressly prohibit its penalization in cases of rape. It goes without saying that the validity of this interpretation, particularly in the case of international law, is extremely controversial.