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7. The Struggle Against Informal Rules on Abortion in Argentina
- University of Pennsylvania Press
- Chapter
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C h a p t e r 7 The Struggle Against Informal Rules on Abortion in Argentina Paola Bergallo Since 1921, Argentina’s National Criminal Code (NCC) has allowed abortion for specified indications. The text of NCC’s Article 86 reads: Abortion performed by a licensed medical practitioner with the consent of the pregnant woman is not punishable: 1. If done in order to prevent danger to the life or health of the mother and if this danger cannot be avoided by other means. 2. If the pregnancy is a result of a rape or indecent assault on an idiot or insane woman. In this case, the consent of her legal representative shall be required for the abortion.1 Where abortions are not provided for these indications, Article 85 establishes penalties of up to ten years for providers and up to four years for women undergoing abortions. This original 1921 wording of Article 86 underwent modifications during the dictatorships, but in 1984, President Alfonsín rolled back the dictatorial reforms to the criminal code,2 and the text recovered its 1921 wording. However, since 1984, abortions to save a woman’s life or health and in cases of rape were rarely available in the different sectors of the Argentine health system. This lack of legal abortion services for the Article 86 indications could be described as the result of an “informal rule” banning the practice. 144 Procedural Justice and Liberal Access This chapter tells the story of the recurring confrontations between proponents of the “informal rule” establishing a de facto prohibition of legal abortion services, and those seeking to foster compliance with the “formal rule” allowing women’s access to abortions authorized by Article 86. As scholars of informal institutions have argued, informal rules and procedures are key to structuring the “rules of the game” as they shape how democratic institutions work and can reinforce, subvert, or even overturn formal rules, procedures , and organizations.3 Moreover, in weak democratic contexts, informal rules can operate in what is called the “brown areas” of the state. These areas are characterized by “low-intensity citizenship,” where citizens are not engaged in the institutions of government, and the “(un)rule of law where there is the uneven and arbitrary application of the law by public officials, reinforcing inequalities.”4 This chapter shows that since the late 1980s, conservative actors deployed an array of legal arguments and strategies that inhibited the provision of legal abortion authorized by Article 86. Such efforts succeeded in subverting formal rule and establishing a competing informal rule. But starting in 2005, progressive actors began to deploy new strategies to enforce the duty to provide legal abortions. These legal fights in provincial, national, and international settings signaled a shift toward the proceduralization of abortion regulation as a means to dismantle the informal rule. This procedural turn developed out of court orders following the litigation of individual cases to access legal abortions, the recommendation of international human rights committees, and the approval of legal abortion protocols by provincial ministries of health. Proceduralization involved establishing new precedents and rules regulating the provision of legal abortion services by public and private health providers. These precedents specified the legal criteria for assessing the danger to the life or health of the women, clarified the scope of the rape exception , and enforced the existing legal duties of medical professionals and institutions. What has been the trajectory of this procedural turn? Who were the actors involved in the confrontation between formal and informal rules? What are the changes and continuities brought about by the procedural turn? This chapter seeks to answer these questions and find lessons for further legal reform. With that goal in mind, the first part of the chapter illustrates the power of informal rules to subvert formal law by examining the development of the de facto total ban on abortion services. It shows how, in the first two decades of democratic transition beginning in 1983, conservative groups succeeded [44.200.101.170] Project MUSE (2024-03-29 00:45 GMT) Informal Rules on Abortion in Argentina 145 in fostering a restrictive interpretation of Article 86 abortion indications. The second part of the chapter offers an account of the enduring struggle to overturn that informal rule and to reinstate the formal rule that mandated the provision of legal abortions. Since 2005, momentum to replace the informal rules has gained force through a procedural turn and a renewed interpretation of the NCC in light of the...