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Does She Really Support Reproductive Rights? Mixed Messages from Brazil’s First Female President

11:51 am in Uncategorized by RH Reality Check

Written by Beatriz Galli for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

At the recent Rio+20 summit, Brazilian President Dilma Rousseff  joined with other women heads of state in signing a “call to action” in support of the right of women to sexual and reproductive health. It was a true “photo-op” moment generating plenty of international headlines for Rousseff, Brazil’s first female president, and the other high-profile leaders.

But for those of us actively working for women’s reproductive health rights in Brazil, it was more of an “Oh, really?” moment.

Because we could see what probably was coming. Despite her backing of the call to action, Rousseff ended up signing onto the final document produced at Rio+20 — a compromise plan that made no mention at all of women’s reproductive rights and that has since been roundly criticized for selling out not only women but Mother Earth herself.

Only a few months ago, Rousseff used her presidential power to enact a controversial measure establishing a national pregnancy registry in Brazil. Far from increasing women’s reproductive rights, the registry posed a genuine threat to those rights.

Fortunately, in response to an intense campaign by feminist and reproductive rights advocates, Brazil’s national lawmakers decided to let the registry law die for lack of congressional approval, thereby showing a true commitment to women’s human rights.

The controversial law, Provisional Measure 557, had been enacted by Rousseff last December, when the country was focused more on the holidays than on politics. Provisionary measures such as PM 557 are a way for Brazilian presidents to enact laws without congressional authorization and are intended for urgent matters.

On the surface, PM 557 did seem to address an undeniably urgent matter, that of Brazil’s high maternal mortality rate. It required all pregnant women to register their pregnancies with the state, ostensibly to ensure better access to quality maternal care.

But the reality would have been far more complicated. A national registry of pregnant women — which one critic rightly termed “Kafkaesque” — would have allowed the government to monitor and control women’s reproductive choices. Even after a provision on the rights of the unborn had been withdrawn, the legislation continued to disregard women’s human rights, such as the right to privacy and confidentiality of health information. It still raised many concerns. Once a woman registered her pregnancy, would she have been legally obligated to have the child? What about pregnancies ending in miscarriage or an abortion? Would women have faced legal consequences? If the pregnancy endangered a woman’s life or was the result of rape, would women get information on where to get legally permitted abortions?

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Argentina’s Supreme Court Permits Abortion in All Cases of Rape, But Access To Care Remains a Challenge

8:53 am in Uncategorized by RH Reality Check

Written by Alia Al-Khatib for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

On March 13, 2012, the Supreme Court in Argentina issued a decision in the case F., A. L. s/Medida autosatisfactiva, which clarified a woman’s right to obtain an abortion in all cases of rape.  This is particularly significant in a country where, according to an official estimate from the Health Ministry in Argentina, between 486,000 and 522,000 illegal abortions are performed annually. While this is an enormous achievement towards women’s access to safe and legal abortion in Argentina, ensuring that rape survivors are able to access abortion in practice represents an even greater challenge.

The decision emerged from a March 2010 case in the province of Chubut involving a 15-year-old girl, A. G., who was raped by her stepfather and became pregnant. With the support of her mother, A. G. sought an abortion by first requesting approval from the Criminal Court judge in the province. Due to an unclear understanding of the Penal Code in the lower courts of the province, she had to obtain authorization ultimately from the Superior Justice Court in Chubut, a process that lasted two months. A. G. was able to obtain an abortion, though only after a long period of delay and a great deal of unnecessary stress. Even when the pregnancy had already been terminated, the case proceeded to the Federal Supreme Court in order to seek clarification concerning the permissibility of abortion in certain circumstances.

According to Article 86 of the Argentine Penal Code, abortion is not punishable on two grounds: first, if the health or life of the mother is at risk and abortion is the only way to relieve this risk; second, if the pregnancy results from a rape or if the woman is mentally incapable of providing consent.  In this case, the Supreme Court considered the second clause. The Court determined that, in all cases of rape and not only in situations in which the woman is mentally incapable, a woman has not provided consent. For this reason, the Court provided an interpretation of the Penal Code that decriminalizes abortion in all cases of rape and that allows a rape survivor to obtain an abortion without the need for judicial proceedings. Furthermore, the Court made it clear that it is illegal to obstruct a rape survivor from exercising her right to abortion.

The Supreme Court’s decision is consistent with developments in international human rights law and standards. In one such case from July 2006, L. M. R. v. Argentina, L. M. R., a young woman with a mental age of between eight and ten years, became pregnant after being raped by her uncle. Though Article 86 of the Penal Code clearly permits abortion in this scenario, the public hospital initiated judicial proceedings to determine whether or not L. M. R. could terminate the pregnancy because staff members at the hospital disagreed as to whether she had grounds to do so. A juvenile court judge denied the abortion.

Following a series of appeals, the Supreme Court of Buenos Aires determined that L. M. R. could terminate the pregnancy based on the second clause of Article 86 of the Penal Code. Even after the Supreme Court of Buenos Aires issued this decision, the local hospital refused to perform the abortion and defended their position by claiming that the pregnancy was too advanced, though at the time L. M. R. was just under 20 weeks. With the help of local advocates, she ultimately obtained an illegal abortion in a private clinic. In March 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights determined that denying L. M. R. an abortion violated her right to equality and non-discrimination embodied in the Covenant and that forcing her to continue with the pregnancy constituted cruel and unusual punishment.

The cases of L. M. R. and F., A. L. illustrate that, although the law provides for the right to abort in certain circumstances, women face many obstacles from anti-abortion legislators and judges, and even health providers who are meant to provide these services. Shortly after the Supreme Court issued its decision in the case of F., A. L., the governor of Salta, a province in northern Argentina, announced that he would not comply with the Supreme Court’s decision. Similarly, the Health Minister in Santa Rosa, the capital of La Pampa province, stated that public hospitals would not abide by the decision. Though not surprising, the refusal of these provincial leaders to comply with the federal case is futile and only serves to delay the implementation of protocol for non-punishable abortion in rape cases. Furthermore, the Archbishop of Santa Fe denounced the decision in an interview with a national newspaper, La Nación, and stated that there never exists a justification for abortion, a statement that carries a great deal of weight in a country, like others in Latin America, that remains heavily influenced by the Catholic Church.

Such reactions to this particular case remind pro-choice advocates that this decision is only the first step in ensuring that rape survivors can access abortion and that there is even more work ahead for women to gain access to safe, voluntary, and legal abortion in Argentina. Moving forward, local advocates plan to urge provinces to implement protocols in hospitals so that the law is clear to health providers and to women seeking abortions.