Plaintiff, a minor represented by her mother, sought a court order, under art. 86, para. 1 and 2 of the Penal Code, permitting termination of her pregnancy, which Plaintiff alleged resulted from rape by her mother’s husband. Plaintiff was in the eighth week of pregnancy and was suffering from depression as result of the pregnancy. The Superior Court of Justice overturned a lower court’s holding, and permitted an abortion to be carried out. Importantly, at this time, a growing body of jurisprudence from different provinces, protocols, and national health regulations had interpreted this provision to permit abortion in all cases of rape, given lack of clarity within the provision’s statutory construction.
The decision was subsequently challenged in the Argentine Supreme Court of Justice on behalf of the ‘unborn child’ by the Subrogating General Counsellor, acting as guardian ad litem. Appellant claimed that the court had erred, as art. 86 of the Penal Code permitted abortions in cases of rape only to those with intellectual disabilities (“idiotic and demented” in translation) and the court’s ruling was inconsistent with domestic Constitutional protections of prenatal life, as well as protections under international human rights law. Specifically, the petitioner relied on Article 75, paragraph 23 of the Constitution, which empowers Congress to “protect children from abandonment, [from] pregnancy up to the end of elementary education,” as well as numerous international instruments, such as the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child.
The court noted that it was its responsibility to harmonize federal law with constitutional law and international law. Notably, in rejecting arguments that the case was moot since the petitioner had accessed abortion care, the court reasoned, in part, that the failure to issue a decision “may compromise Argentina’s state responsibility before the supranational legal system.”
The court rejected appellant’s claim under art. 75, para. 23 of the Argentine Constitution. The court pointed to the debate at the time of the Constituent Assembly over restricting “permissible abortions” under art. 86 to those with intellectual disabilities, which resulted in no legislative action. The court also rejected appellants’ claims based on the rights guaranteed under the international treaties referenced above as it found they do not guarantee right to life and personhood prenatally. It referred to the United Nations Human Rights Committee’s previous concluding observations urging that abortion be permitted in cases of rape. The court rejected the idea that art. 2 of Law 23.949, which provided for interpretation of the Convention on the Rights of the Child so as to count as a child “every human being from the moment of conception,” modified the scope of the Convention or other treaties and was not a valid treaty reservation under art. 2 the Vienna Convention on the Law of Treaties.
Drawing on convention and constitutional norms of non-discrimination and equal protection and on the state’s duty to protect women from sexual assault, the court concluded that it was not reasonable to interpret art. 86 of the Penal Code as excluding certain victims of rape from the scope of permissible abortions. Accordingly, the court rejected the appellant’s claim and issued an authoritative interpretation of the rape exception with Argentina’s penal code, affirming that all women who become pregnant as a result of rape are legally permitted to access abortion services. Furthermore, the court made clear that these women and girls are not required to provide evidence of the rape or to receive judicial authorization before accessing abortion care.