Judicial Lawfare: Analysis of Legal Arguments against Abortion Rights in Peruvian Courts

Gianella, Camila; Álvarez, Brenda

doi:10.1590/2317-6172202146

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Batalha Pelo Direito Ao Aborto Na América Latina • Rev. direito GV 17 (3) • 2021 • https://doi.org/10.1590/2317-6172202146 copy

Judicial Lawfare: Analysis of Legal Arguments against Abortion Rights in Peruvian Courts

LAWFARE JUDICIAL: ANÁLISES DOS ARGUMENTOS JURÍDICOS CONTRA OS DIREITOS AO ABORTO NAS CORTES PERUANAS

Authorship SCIMAGO INSTITUTIONS RANKINGS

Abstract

This article analyzes the puzzling case of Peru, a country highlighted as an example of the internationalization of sexual and reproductive health and rights norms through supranational litigation, but where these legal victories have not prompted an expansion of abortion rights. Through the analysis of three judicial cases, with a focus on the legal arguments and strategies, the article argues that two features of the abortion legal mobilization in Peru are key to understand the lack of more positive developments: 1) formalistic feature of Peruvian Courts, that offers little space toward recognizing additional grounds for abortion, as has been the case in other Latin American countries; 2) innovative capacity of anti-abortion legal mobilization, that have forced to create a tacit alliance between the movement toward the recognition of abortion rights and the State, to defend the (restricted) abortion rights in the country.

Keywords
Judicial lawfare; Peru; abortion rights; Peruvian Courts; legal arguments

CASE	COURT	PLAINTIFF	DEFENDANT	SUBMITTED	DECISION	OBSERVATIONS
CRIMINAL LAWSUIT AGAINST EMP FOR INDUCING AN ABORTION	SUPERIOR COURT OF LIMA	STATE	EMP	2015	2017	NO GROUNDS. THE MINOR EMP WAS ACQUITTED OF CRIMINAL CHARGES.
CONSTITUTIONAL WRIT (AMPARO) AGAINST THE MINISTRY OF HEALTH (CASE NO. RESOLUTION NO. 028)	SUPERIOR COURT OF LIMA	NGO ACCIÓN DE LUCHA ANTICORRUPCIÓN “SIN COMPONENDA”	PERUVIAN STATE (MOH)	2014	2019 AND 2020	DISMISSED. THE CASE WILL BE DECIDED BY THE CONSTITUTIONAL COURT.
POPULAR ACTION AGAINST THE COUNTRY’S THERAPEUTIC ABORTION GUIDELINES (CASE NO. 00058-2018-0-1801- SP-CI-01 REF. SALA: 225-2018-0)	SUPERIOR COURT OF LIMA	ASOCIACIÓN CENTRO DE ESTUDIOS JURÍDICOS SANTO TOMÁS MORO	PERUVIAN STATE (MOH)	2018	2020	DISMISSED. THE CASE WILL BE DECIDED BY THE SUPREME COURT.

BILL	DATE	PROPOSAL	STATUS
00636	09/11/1995	MODIFY ARTICLE 117 OF THE PENAL CODE REGARDING THE ABUSE OF A HEALTH PROFESSIONAL’S SCIENCE OR ART TO CAUSE AN ABORTION (THERE IS NO INFORMATION ON THE TEXT OF THE PROPOSED MODIFICATION OF ARTICLE 117).	FILED IN PARLIAMENTARY COMMITTEE.
01855	16/09/1996	MODIFY ARTICLE 120 OF THE PENAL CODE TO DECRIMINALIZE ABORTION IN CASES OF RAPE OUTSIDE OF MARRIAGE AND IN CASES OF NONCONSENSUAL ARTIFICIAL INSEMINATION.	FILED IN PARLIAMENTARY COMMITTEE.
02263	21/11/1996	THE GENERAL HEALTH LAW INCLUDES THE OBLIGATION OF HEALTH PERSONNEL TO REPORT ABORTION CASES TO THE AUTHORITIES IN CHARGE OF CRIMINAL PROSECUTION.	PROMULGATED INTO LAW (LAW NO. 26842).
02310	27/11/1996	MODIFY ARTICLE 117 OF THE PENAL CODE TO PUNISH THE PARTICIPATION OF DOCTORS, NURSES, OR HEALTH PERSONNEL IN ABORTION PRACTICES.	FILED IN PARLIAMENTARY COMMITTEE.
04047	25/09/1998	MODIFY ARTICLE 120 OF THE PENAL CODE TO DECRIMINALIZE ABORTION IN CASES OF RAPE AND NONCONSENSUAL INSEMINATION.	FILED IN PARLIAMENTARY COMMITTEE.

BILL	DATE	PROPOSAL	STATUS
00122	27/07/2001	DECLARE MARCH 25 “DAY OF THE UNBORN CHILD”.	PROMULGATED INTO LAW (LAW NO. 27653).
00421	23/08/2001	EXPAND THE CASES OF NON PUNISHABLE ABORTION CONTAINED IN ARTICLE 119 OF THE PENAL CODE TO INCLUDE FETAL MALFORMATIONS INCOMPATIBLE WITH EXTRAUTERINE LIFE.	THE BILL WAS NOT DISCUSSED IN PARLIAMENTARY COMMITTEES.
00839	28/09/2001	INCORPORATE ARTICLE 124A INTO THE PENAL CODE, CLASSIFYING THE CRIME OF “INJURY TO THE PRODUCT OF CONCEPTION”.	PROMULGATED INTO LAW (LAW NO. 27716).
01696	01/04/2002	MODIFY ARTICLES 114, 115, 117, 118, AND 119 OF THE PENAL CODE TO INCREASE PENALTIES FOR WOMEN WHO ABORT.	WITHDRAWN BY ITS AUTHOR.
04562	13/11/2002	MODIFY ARTICLES 116 AND 117 OF THE PENAL CODE TO INCREASE PENAL SANCTIONS FOR THOSE WHO FORCE WOMEN TO ABORT.	APPROVED AT CONGRESS COMMISSION. WAS NOT DISCUSSED IN PLENARY SESSION.
05225	13/01/2003	GUARANTEE THE MEDICAL CARE OF WOMEN WHO ABORT BEFORE PROCEEDING TO THEIR ARREST OR SUMMONS FOR INVESTIGATION.	FAVORABLE OPINION BUT IT WAS NOT DISCUSSED IN PLENARY SESSION.
05439	30/01/2003	AMENDS ARTICLE 118 OF THE PENAL CODE TO AVOID CRIMINAL PENALTIES FOR WOMEN WHO UNINTENTIONALLY ABORT.	THE BILL WAS NOT DISCUSSED IN PARLIAMENTARY COMMITTEES.
06735	13/05/2003	PROHIBIT THE PUBLICATION OF INFORMATION ON ABORTION METHODS IN THE MEDIA.	THE BILL WAS NOT DISCUSSED IN PARLIAMENTARY COMMITTEES.
10957/2003-CR	07/07/2004	DECRIMINALIZE ABORTION FOR RAPE AND EUGENIC ABORTION.	THE BILL WAS NOT DISCUSSED IN PARLIAMENTARY COMMITTEES.
11083/2004-CR	04/08/2004	MODIFY ARTICLES 114, 115, 116, 117, AND 118 OF THE PENAL CODE TO INCREASE PENALTIES FOR THE CRIME OF ABORTION.	THE BILL WAS NOT DISCUSSED IN PARLIAMENTARY COMMITTEES.

BILL	DATE	PROPOSAL	STATUS
02878/2008-CR	24/11/2008	MODIFY ARTICLE 119 OF THE PENAL CODE TO INCORPORATE A LIST OF HEALTH CONDITIONS NEEDED TO ACCESS THERAPEUTIC ABORTION AND LIMIT ITS PRACTICE TO 60 DAYS OF GESTATION; MODIFY ARTICLE 120 TO DECRIMINALIZE ABORTION IN CASES OF ANENCEPHALY.	THE BILL WAS NOT DISCUSSED IN PARLIAMENTARY COMMITTEES.

BILL	DATE	PROPOSAL	STATUS
03648/2013-CR	25/06/2014	PROHIBIT THE DISPLAY AND ADVERTISING OF ABORTION.	IT WAS NOT DISCUSSED.
03839/2014-IC	26/09/2014	DECRIMINALIZE ABORTION IN CASES OF RAPE, NONCONSENSUAL ARTIFICIAL INSEMINATION, AND NONCONSENSUAL EMBRYO TRANSFER.	FILED IN TWO COMMISSIONS: CONSTITUTION AND REGULATIONS AND JUSTICE AND HUMAN RIGHTS.
03962/2014-CR	07/11/2014	NCORPORATE THE CRIME OF WRONGFUL ABORTION INTO THE PENAL CODE AND MODIFY ARTICLE 124A TO INCLUDE PENALTIES FOR THOSE WHO CAUSE INJURY TO THE BODY OR HEALTH OF THE CONCEIVED.	ADDED TO THE DRAFT REFORM OF THE PENAL CODE.
04101/2014-CR	18/12/2014	MODIFY ARTICLES 290, 363, AND 364 OF THE PENAL CODE TO PROHIBIT PRACTICES THAT ENCOURAGE ABORTION THROUGH FLYERS, PRINT MEDIA, OR SOCIAL MEDIA.	ADDED TO THE DRAFT REFORM OF THE PENAL CODE.

BILL	DATE	PROPOSAL	STATUS
387/2016-CR	12/10/2016	DECRIMINALIZE ABORTION IN CASES OF RAPE, NONCONSENSUAL ARTIFICIAL INSEMINATION OR FERTILIZED EGG TRANSFER, AND MALFORMATIONS INCOMPATIBLE WITH LIFE.	NOT DEBATED.
7298-2020-CR	09/03/2021	TO: I) RECOGNIZE THE RIGHT TO FREELY DECIDED MOTHERHOOD; II) WITHDRAW THE DISCUSSION OF ABORTION FROM THE CRIMINAL SPHERE, CIRCUMSCRIBING IT TO THE FIELD OF HEALTH CARE; III) RECOGNIZE THE RIGHT TO INTERRUPT THE PREGNANCY UNTIL THE FOURTEENTH WEEK, AND EXTEND THE TERM WITHOUT LIMITS IN CASES OF RAPE AND WHEN THE LIFE OR HEALTH OF THE PREGNANT WOMAN IS FOUND IN DANGER; IV) INCLUDE THE PRINCIPLES OF NON-DISCRIMINATION, RESPECT FOR FUNDAMENTAL RIGHTS AND ADEQUATE PROVISION OF PRE AND POST-ABORTION CARE SERVICES; V) INCLUDE RULES FOR CONSENT TO THE TERMINATION OF PREGNANCY FOR WOMEN WITH DISABILITIES AND FOR GIRLS AND ADOLESCENTS ESTABLISHING RESTRICTIONS ON THE EXERCISE OF CONSENT FOR ADOLESCENTS AND GIRLS UNDER 15 YEARS OF AGE; VI) MODIFY ARTICLE 1 OF THE CIVIL CODE IN ORDER TO RECOGNIZE THAT HUMAN LIFE BEGINS WITH THE WOMAN’S DECISION TO CARRY HER PREGNANCY TO TERM.	NOT DEBATED.

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