Report Nº: 03/12/2019
The muddle around a protocol for abortion shows the level of ignorance about how the federal system works. The protocol was merely an optional guide since medical regulations are a provincial jurisdiction. Spain, which eliminated its national “Ministry of Health”, should be imitated. Article 86° of the Criminal Code establishes that abortion is not punishable […]
Article 86° of the Criminal Code establishes that abortion is not punishable when it is performed to avoid danger to the life or health of the mother or when it is the result of rape. This is known as “legal interruption of pregnancy”. In 2012, the Supreme Court, in its ruling “F., A. L. vs/ measure of self-satisfaction”, established that, whoever finds himself in the conditions described in article 86° of the Criminal Code, should not be obliged to request judicial authorization to terminate her pregnancy. This is so since the law does not require it.
Based on this legal framework, the National Health Secretariat issued a Resolution establishing a protocol. This is no more than a set of quality rules to be applied to interruptions of pregnancy carried out under the terms of the Criminal Code and the ruling of the Court. The objective was to guaranty safe, humane, and dignified conditions for legal abortions. However, the law generated media turmoil because the protocol was confused with the legalization of abortion among young women. This led the President to repeal the Resolution by Decree and the National Secretary of Health to resign.
The mess deserves at least two considerations. The first is to assess the size of the problem to which the protocol pointed. The second is to assess the capacity of the instrument to solve the problem. Concerning the first point, according to Vital Statistics of the Direction of Statistics and Information in Health, it is observed that in 2018:
These data show that teenage pregnancy is a socio-health problem of a magnitude that deserves special and professional attention. Especially when it is medically proven that the pregnancy of a mother under the age of 20 is risky. This massiveness endorses the relevance of promoting safe and good quality practices when cases are presented as non-punishable abortions (according to the Criminal Code and the Supreme Court). Without such a protocol, non-punishable abortions will continue to be done anyway, under the individual criteria of each medical team. That is to say, without guarantees that the best efforts will be made to protect women.
The second consideration is the protocol’s ability to solve the problem. There is a great deal of confusion among national officials in this matter. The norms issued by the national health authority are mere suggestions and do not oblige anyone since medical care in Argentina is the provinces’ responsibility. No article of the national Constitution uses the word “health”, while in the 24 provincial constitutions, there is specific treatment of this area of public policy, including regulatory powers in health matters. This means that the protocol was merely a quality guide of optional application for each province.
A similar testimony to the functional disorder under which the national public sector operates is the national program “Development of sexual health and responsible procreation”. With this program, the National Secretary of Health intends to distribute 25.3 million condoms throughout the country. If this national program were minimally effective, there would be fewer pregnancies and the controversial protocol would be less necessary. These are evidence that the national interventions, overlapped with services in charge of the provinces, do not provide solutions but money and energy squandering.
The new President could make a significant contribution to public health by eliminating national interventions in areas that fall within the provinces’ jurisdiction. Instead of entering into the unimportant discussion about whether they should have the level of Ministries or Secretariats, these national structures should be eliminated since they overlap with provincial and municipal functions. Spain, which has a well-recognized for its good results health system, closed its “national Ministry of Health” in 2002 because it was inconsistent with the fact that health regulations are regional authorities’ jurisdiction.