Plaintiff Violeta Cristina Gomez Hinostroza initiated a constitutional protective action (amparo) seeking the free-of-charge distribution of Levonorgestrel, an emergency oral contraceptive, in the State’s medical centers. In the context of such action, the plaintiff also requested a precautionary measure ordering the State to distribute Levonorgestrel in its medical centers free of charge—the same relief ultimately sought in the principal action.
The relief at issue conflicted with the prior decision of the Constitutional Court in File No. 02005-2009-PA/TC, ordering the Ministry of Health to abstain from developing national public policies for the free-of-charge distribution of the “morning after pill” (e.g., Levonorgestrel-based emergency contraception) (the “Decision”). The Decision was grounded on the understanding that conception occurred at the time of fertilization, when the male and female gametes are joined prior to implantation, and also the doubts surrounding how emergency contraception affected the uterus and the implantation process. On these bases, the Constitutional Court concluded that emergency contraception l affected the unborn’s right to life, and ordered that its distribution by the State be ceased. The Sentence also noted that in the event that the level of consensus regarding the safety of emergency contraception changed in the future, the position taken by the Court would need to be revisited.
In its Resolution on Preliminary Measure, the Court noted that the precautionary measure at issue was of an “innovative” nature, as it sought to modify the factual situation that existed at the time the principal action was filed – specifically, the prohibition on the State distributing emergency contraception free-of charge, pursuant to the Constitutional Court’s Decision. Consequently, the Court observed that the plaintiff’s request would have to establish a likelihood of success on the merits, and an imminent and irreparable harm, as well as comply with other conditions provided in the Constitutional Procedural Code.
First, the Court analyzed the likelihood of success on the merits (i.e. the likelihood that the constitutional right invoked by the plaintiff in her request (the right to the free-of-charge distribution by the State of emergency contraception) will ultimately be recognized by the Court). The Court observed at the outset that although the principal action was filed by an individual, the right invoked was a collective right because the relief sought would affect all women, not only the plaintiff.
The Court then proceeded to assess the new evidence regarding the morning after pill. Particularly, the Court observed that the Inter-American Court of Human Rights ruling in case Artavia Murillo and others (in vitro fertilization) vs. Costa Rica, dated November 28, 2012, found that an embryo has no chance of surviving if implantation does not occur, and thus the term “conception”—as used in Article 4.1 of the American Convention of Human Rights—should be understood to refer to implantation. In this regard, the Court underscored that the Inter-American Court of Human Rights provided interpretative guidance on those human rights also recognized by the Peruvian constitution.
The Court also highlighted that, according to the World Health Organization’s (“WHO”), the Levonorgestrel-based emergency contraception is ineffective once the implantation process begins, cannot cause an abortion or future fertility issues, and is generally safe. As a result, the Court concluded there was sufficient evidence showing that the reasons supporting the Sentence had changed substantially.
Additionally, the Court noted that the Decision banned free-of-charge distribution of emergency contraception by the state, but not its sale by the private market. This, in practice, led to discrimination against extremely poor women, who were the only ones precluded from obtaining emergency contraception, and therefore caused unequal treatment prohibited by Article 2, subsection 2 of the Peruvian Constitution. The Court concluded that the right to health was intimately related to the right to equal treatment, and that the lack of free distribution of emergency contraception directly affected this right. On this basis, it found that the precautionary measure request satisfied the element of likelihood of success on the merits.
Next, the Court assessed whether there was an imminent and irreparable harm that would materialize if the precautionary measure requested was denied. In this regard, the Court referred to the Technical Document “National Preparedness and Response Plan in the face of the Zika Virus disease,” which showed that the population at risk of acquiring Zika included “women of fertile age”—the very same collective group that the precautionary measure sought to protect. The Court found that a measure ordering the free-of-charge distribution of emergency contraception, which would contribute to preventing unwanted pregnancies and mitigating the consequences of the Zika virus, was urgently needed, and that delaying it until a resolution on the merits would effectively cause irreparable harm to these women.
Upon corroborating that the additional procedural requirements were met, the Court ruled that the request for a precautionary measure was funded, and ordered the Ministry of Health to temporarily distribute emergency contraception free of charge in all national health centers within 30 days.