The National Government published this morning a decree that canceled Resolution No. 3158/2019, which approved an update of the National Protocol for the comprehensive care of people entitled to legal termination of pregnancy.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”.

The Ministry of Health of the Nation had approved by resolution, published in the Official Gazette last Wednesday morning, the third update of the guide that contains the guidelines and standards of care for cases of abortions allowed by law. The first protocol of these characteristics was prepared in 2007, and updated in 2010 and 2015, where the provisions made by the Supreme Court were incorporated in the FAL ruling of 2012.

On this occasion, the update had been carried out in the light of the new Civil and Commercial Code, which was sanctioned in 2015, particularly with regard to minors and persons with disabilities. These axes had already been included in an explanatory note, in September 2016, but the 2019 update incorporated them into the text. In addition, it contained the latest recommendations regarding medical procedures recommended by the World Health Organization. The most important thing is that, when approved by resolution, the protocol was granted a superior legal and regulatory entity, which would have allowed the actions for its implementation to be reinforced.

Round and round

Several hours after its publication, in the afternoon, various media reported that President Mauricio Macri ordered that the resolution be annulled and that the Secretary of the Government of Health, Adolfo Rubinstein, be asked to resign.

Although in the morning there was no official decision, during the afternoon of Thursday the rumors were confirmed after a Cabinet Meeting, where Carolina Stanley, Minister of Health and Social Development, said that: “The protocol is going to be repealed because it was an unqualified decision of the Secretary of Health ”.

The decision was finalized with the publication this morning of Decree 785/2019, through which the resolution is repealed. Among the reasons stated, the Government argues that the Secretary’s decision was inconsistent with his superiors and other agencies that would have competence in the matter and that, therefore, should have intervened, such as the National Secretariat for Children, Adolescents and Family (SENAF), the Federal Council for Children, Adolescents and Family, the National Disability Agency, the National Women’s Institute (INAM) and the Ministry of Justice and Human Rights.

A meaningless decree

It is noteworthy that the cancellation of the resolution is based on these reasons, when none of the previous protocols (of 2007, 2010, 2015 and explanatory note of 2016) foresaw or required interventions by these organizations.

It is even more surprising that, as an argument, the impact of the protocol on the rights of girls and adolescents is emphasized, when this update, now frustrated, was adequate to the obligations of the Argentine State to be part of the Convention of the Children’s rights. In fact, in the last concluding observations of the Committee on the Rights of the Child addressed to Argentina, which were announced on June 1, 2018, the State was recommended to “guarantee adolescents’ access to abortion services without risk and post-abortion care, making sure that the opinion of the interested party is always heard and duly taken into account in the decision process”. This is precisely what the protocol update provided for, by adapting the guidelines on the consent of girls and adolescents to the provisions of the Civil and Commercial Code, based on the principles of progressive capacity and best interests of the child.

The reference to the lack of intervention of the National Women’s Institute, the governing body on issues related to violence against women, is also curious. The provisions of the Committee on the Elimination of Discrimination against Women (CEDAW) cannot be ignored because of its primary function of safeguarding the human rights of women in the States parties to the Convention, such as It is the case of Argentina. In the last Concluding Observations towards Argentina, of the year 2016, the CEDAW Committee expressed its concern about the stagnation of the maternal mortality rate, due, among other things, to abortions performed at risk; the limited access to legal abortion, in contravention of the legislation and the decision adopted by the Supreme Court of Justice in 2012; the frequent refusal of doctors to perform an abortion for reasons of conscience; and cases of prosecution against women who have undergone abortions. Therefore, he urged the State to initiate accountability procedures for non-punishable abortion, and to ensure that women have access to legal and safe abortion services. The update of the protocol was clearly in this regard, because it was an advance for access to the service, and reinforced the importance of rapid access to comprehensive care and practice, emphasizing first level care and medication treatments.

What makes no sense is the reference to the draft reform of the Criminal Code, and consequent relevance of the Ministry of Justice and Human Rights in this matter. What the protocol regulates is a health practice. Although the right to legal termination of pregnancy comes, among other rules, from the interpretation made by the Supreme Court in the FAL ruling of Art. 86 of the Criminal Code that is in force in our country since 1921, a supposed reform of that rule It should not prevent the standards of attention on that right from being improved, which is also an acquired right. Moreover, taking into account that the draft reform of this Code is extremely regressive in its regulation of abortion.

ILE is already right

The repeal of the resolution that updated the protocol is unfortunate. The update constituted a breakthrough in the recognition of the human rights of women and pregnant people, in respect to human rights treaties, the principle of progressivity and non-regressivity, and the adaptation to the provisions of the Supreme Court of Justice of the Nation through the FAL ruling

However, the right to legal termination of pregnancy is not repealed, and is given by law: Article 86 of the Criminal Code, as interpreted by the Supreme Court in 2012.

Health teams should continue to apply the 2015 technical guide, with the explanatory note that was added in 2016. The decree only repeals the update, so the previous protocol remains in force.

It is imperative that state officials assume a serious commitment to our rights. The legal interruption of pregnancy is a fundamental human right, and political will is needed to guarantee its access in the best conditions.

Contact

Mayca Balguer, maycabalaguer@fundeps.org

The Superior Court of Justice denied the appeal filed by Portal de Belén for the Supreme Court to review the ruling confirming the constitutionality of the Guide for the Care of Non-Punishable Abortions. After seven years of judicial discussions, the guide is finally applicable.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”.

In 2012, the Ministry of Health of the province of Córdoba approved the Procedure Guide for the care of patients requesting Non-Punishable Abortion practices. This guide was approved in compliance with what was indicated by the Supreme Court of Justice of the Nation in the FAL ruling, where he entrusted the national and provincial executive powers with the implementation of hospital protocols “for the specific care of abortions not punishable by the effects of removing all administrative or factual barriers to access to medical services ”.

The Guide, approved by means of Resolution 93/12, establishes the way to proceed of the health institutions of the province of Córdoba before the requirement of an abortion not punishable by the causes established in Art. 86 Inc. 1 and 2 of the Code Criminal with the interpretation of the Supreme Court. This is:

When the life or health of the pregnant person is in danger. Here it is important to keep in mind that according to the World Health Organization, it is understood as the greatest state of general well-being (social, physical, emotional, spiritual, mental, etc.) that a person can have. In this sense, the possibility of deciding is a factor that affects the health of pregnant people. On the other hand, when the pregnancy is a product of rape.

However, the application of this Guide was suspended almost from the moment of its approval. Despite the clear judicial interpretation of the rules on non-punishable abortion made by the Supreme Court in the F.A.L. and by the Ministry of Health of the province to sanction it, the religious organization “Portal de Belén” presented an amparo to prevent its application, achieving the interposition of a precautionary measure on the Guide and thus preventing pregnant people, for the most part, women, could access a fundamental right for more than 7 years.

The difficulties of abortion in Córdoba

This meant that legal abortion situations that arose in the province during these years should be resolved in other jurisdictions, or, directly, in hiding. The University Hospital of Maternity and Neonatology, of national jurisdiction and located in the provincial capital, is one of the health centers that guaranteed access, with some difficulties due to the limited staff dedicated to the practice. On the other hand, the Primary Health Care Centers of the Municipality of Córdoba address these situations through the Sexual and Reproductive Health Program that is carried out through an agreement with the Nation. There, women access counseling and can obtain medication to perform the practice on an outpatient basis.

However, when the interruption could not be resolved in these centers, women and pregnant women had nowhere to turn. According to data provided by the Directorate of Sexual and Reproductive Health of the Ministry of Health of the Nation, from January 2018 to July 2019, 155 calls were made from Córdoba to the 0800 Line of Sexual Health for abortion consultations. “The response of the Legal Department of the Ministry of Health of the province of Córdoba to the requirements of this Directorate so that the province guarantees access to ILE and resolves the cases that begin with the calls received in 0800 has been repeated several times that the protocol cannot be applied and therefore there are no legal interruptions of pregnancy in the province. The Directorate has always responded that all provinces must guarantee the causes of ILE established in Art. 86 of the National Criminal Code, regardless of using the National Protocol or not. But the response of the legal area of ​​the province of Córdoba remains the same. ”, The Directorate declared a week ago.

In order to guarantee the practice of ILE to patients in the jurisdiction of Córdoba, it was necessary to articulate national and municipal institutions with friendly health professionals committed to the rights of women and pregnant people. Now it’s up to the province.

The judicial process that finally ends

At the end of last year, on December 18, after a judicial process of more than 6 years, the Superior Court of Justice of Córdoba rejected the amparo action and confirmed the constitutionality of the Guide. However, the filing of the Federal Extraordinary Resource by Portal de Belén for the decision to be reviewed by the Supreme Court maintained the validity of the precautionary measure. That is, until this week, the situation remained the same: women and pregnant women in Córdoba could not access any type of abortion not punishable in provincial hospitals.

In this sense, we consider that the provincial State incurred in institutional violence. The delaying attitude and the delay in resolving the cause by the Judiciary put women and pregnant people in a situation of injustice and lack of access to a basic right. It is a clear breach of the international obligation of the State to guarantee equal access to health.

This September 24, thanks to the struggle of the feminist movement that accompanied the cause during all these years, the highest jurisdictional authority of the province returned to enforce the protocol, by denying the appeal filed by Portal de Belén as inadmissible.

Faced with this last attempt, the TSJ not only rejected the appeal for lack of compliance with formal requirements, but added: “Far from having refuted each and every one of the grounds of the contested judgment, he insisted on reiterating his own views on function of the worldview and the formal scheme of values ​​that it defends, by virtue of which abortion is not admissible in any hypothesis despite what is established by art. 86 inc 1 and 2 of the CP ”.

In other words, what Portal de Belén discussed was not the constitutionality of the Guide, but of all types of abortion, a discussion that was already settled by the Supreme Court in the FAL ruling.

Within the judicial instances, the organization can still lodge a complaint with the Supreme Court. However, it would be absurd for the Court to change the criteria applied in 2012. At that time it confirmed the constitutionality and conventionality of termination of pregnancy in certain cases. It is indisputable that it is allowed by local law and by international treaties to terminate pregnancy in these cases, and in addition, the latest pronouncements of international organizations point to an extension of this right and recommend that all types of prohibition on practice be eliminated. . Far from continuing to discuss non-punishable abortion, what will come in the coming months will be the discussion so that this practice is, once and for all, voluntary, legal, safe and free.

And now? To demand our right

The legal termination of pregnancy can be requested at any public health center in the province. In all cases the informed consent of the person is essential. In addition, a prompt and safe response to the requesting person must be guaranteed, safeguarding their privacy and confidentiality, preserving their personal and family data. No authorization from judicial or administrative authority is necessary. .

In the event that there is danger to the life or health of the woman or pregnant person, it must be verified by the attending physician.

In the case of a pregnancy caused by rape, the woman or pregnant person must state, as a sworn statement, that the pregnancy has been the result of a rape and that for that reason she requests an abortion. You do not need to report the violation.

The period to carry out the procedure must not exceed ten (10) days after the request has been submitted, unless, for strictly medical reasons, the abortion must be postponed.

Authors

Constanza Attwood

Ivana Sánchez

Agostina Copetti

Contact

Mayca Balaguer, maycabalaguer@fundeps.org