Argentina: Recent Abortion Confidentiality Decisions

Via Martín Hevia (Escuela de Derecho, Universidad Torcuato Di Tella) and Mercedes Cavallo (LLM Candidate and Sexual and Reproductive Health Law Scholar, Faculty of Law, University of Toronto, 2008-2009):

On June 4, 2008, the Argentine Criminal Division VI of the Criminal Federal Chamber passed a sentence named “Luque” on professional secrecy of doctors in abortion cases. In a nutshell, the decision held that if a medical professional in the practice of his or her profession reports an abortion, no criminal process can be initiated against a woman who caused her own abortion or allowed someone else to cause it.
The decision sheds light on a debated issue in Argentine law. Every time an Argentine doctor has to assist a woman with an abortion, a legal dilemma arises. The dilemma comes from the conflict between two articles in the criminal code. Art. 156 protects professional secrecy - unless there is a “fair cause” that would justify violation of secrecy. In turn, Art. 277 punishes government employees who find out about a crime and do not report it.

The legal debate can be traced back to 1966, when the Criminal Federal Chamber ruled in “Natividad Frías” that if a medical professional assists a woman who has had an abortion, the report of the crime does not implicate the woman, but it does implicate the perpetrators, co-perpetrators, instigators and accessories. “Natividad Frías” was a “plenary” decision – that is, a joint decision by the different divisions that aims at unifying the Chamber’s understanding of an issue of law, so that the plenary decision works as a legal precedent for future cases heard by lower courts and the Chamber at stake.

Despite some decisions against it, “Natividad Frías” has been seen as the leading case and is followed by most Argentine judges.

Against “Natividad Frías,” in 2007 the Criminal Division VII of the Criminal Federal Chamber passed a sentence named “GN”, a departure from judicial precedent by a key chamber which shocked the citizens and the media. The pillars of “GN” were:

1-    The fundamental right at stake is the right to life of the foetus.
2-    The health of the patient is guaranteed anyway, beyond the judicial intervention.
3-    The woman who seeks medical support is not testifying against herself, because the criminal process has not begun by the time she tells a doctor she has had an abortion.
4-    When the foetus’s right to life is at stake, there is “fair cause” and, therefore, a legal justification to breach the duty of confidentiality between doctor and patient. The foetus’s right to life is hierarchically higher than the woman’s right to privacy.

The decision in “GN” created some confusion in the media about whether women seeking medical attention after having an abortion would be prosecuted or not. The decision in “Luque,” then, clarified the point as the judges of Criminal Division VI of the Criminal Federal Chamber went back to principles from “Natividad Frias”. The main arguments in “Luque” were as follows:

1-If a medical professional reports an abortion, no criminal process can be initiated against a woman who caused her own abortion or allowed someone else to cause it.
2-Women who visit a medical center asking for help do so due to a critical medical condition prompted by an abortion. They do so against their will, driven by desperation and necessity.
3- According to Article 18 of the Argentine National Constitution, no one can be forced to testify against herself. Women who have had an abortion and visit a hospital advise doctors of their condition only because they are in urgent need of medical help.
4- According to Article 177 of the National Criminal Procedure Code, the medical professional is protected by professional secrecy. Thus, doctors have no legal duty to report the crime.
5- There is a conflict of rights. On the one hand, the right of the State to prosecute the commission of – what the Argentine Criminal Code takes to be - crime. On the other hand, the right to privacy of women. 
6- Evidence obtained through a violation of a constitutional right is against the law.

To conclude, the “Luque” judgement restored “Natividad Frías” and established that the Chamber’s general criterion is the protection of the confidentiality. Such decisions prevent maternal death due to complications after abortion, since women in that situation need not fear prosecution if they seek professional help. However, the problem of clandestine abortions remains unsolved and in the meantime thousands of women die per year.

Links to reports in local newspapers:
http://www.lanacion.com.ar/informaciongeneral/nota.asp?nota_id=1024528
http://www.criticadigital.com/index.php?secc=nota&nid=6244