november 2018 No 1
From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia
M. Cecilia Chacón R. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 1
The other day, I was told to hold my tongue, to temper my actions; I was told that it was ok to criticize, to accuse, and to disagree, but quietly, only talking amongst ourselves... I was told to wait, I was told that the social movement, that any social movement, has plans for women, but that I should wait, told that our time hasn’t come yet. ... This I was told by someone who calls herself a friend, and I asked her. But she has not gone to see the indig- enous person... She has not gone to see the day laborer, to tell him to wait, to be friendlier in his complaints with his employer. And she has not gone to see the peasant worker, to tell him to defend his land with kindness and a smile ...
(Excerpts from the poem entitled I was told by Patricia K. Vergara S.1)
Analysis document prepared by M. Cecilia Chacón R. for the Rosa Luxemburg Foundation. Cecilia is a feminist lawyer, specializing in international affairs, human rights and the environment.
1 Patricia Karina Vergara Sánchez is a Mexican feminist, journalist, and teacher. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 2
A Strategic Failure Due to Tactical finally, the appeal for unconstitutionality Errors iled against Article 266 and other articles of the Criminal Code (2012). o understand the legislative proposal on abortion in the current Criminal Code,2 I The first of these three came up during the propose reviewing the recent history of our discussion of the Framework Law on Sexual fight so that criminalization of abortion does and Reproductive Rights,4 which, following not continue to be one of the three leading a vigorous discussion in the Congress, was causes of death of women in our country.3 unanimously passed. However, the issue could not overcome the Catholic Church’s Ignoring or not mentioning the efforts that campaign against it, which operated by T were made in the past, including both their collecting signatures that led then-president failures and small successes, serves only to Carlos Mesa to back down from signing the hide the struggles of those who came before bill into law, and send it back to Congress us, and gives us the false idea that we are for “further debate.” While the bill did always starting from scratch. Given their not specifically propose decriminalization contribution on this issue, and their impor- of abortion, it did recognize the right to tance to today’s struggles, I will focus on physical well-being and autonomy over the three recent milestones: the Framework Law control of one’s own body, as well as the on Sexual and Reproductive Rights (2004), obligations of health service workers. It also the Constituent Assembly (2007-2008), and provided guarantees and mechanisms to protect and defend such rights.5 2 Presented on December 13, 2016 in Santa Cruz, by Vice President Álvaro Garcia L. 4 The bill was drafted by the attorney Julieta Montaño and 3 According to a UNFPA report (2012), the main causes of presented by the Human Rights Commission of the Cham- death of women of reproductive age are: hemorrhage - ber of Representatives, and was passed in May 2004. 33%, infections - 17%, abortion - 9%, hypertension - 5% 5 http://www.bolivia.com/noticias/autonoticias/Detalle- and extended childbirth - 2%. Noticia21718.asp From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 3
The Constituent Assembly was the scene rather was far from being isolated by the of another battle6 between those promoting new political forces of the Bolivian left, find- the decriminalization of abortion and the ing conservatism to be surprisingly well-es- ultra-conservative political forces represent- tablished and active within their ranks. ing both the Church and society. This was another close brush with success in 2007, After nearly five years, and three since the when the Commission of Rights, Duties, new Constitution was passed, on March 13, and Guarantees issued a report stating that 2012, a new proposal came under attack. it would support the right to life starting at This time, it was an appeal for unconstitu- 9 conception.7 However, this decision did not tionality, which argued the incompatibility garner support in the Constituent Assem- between several articles in the 1972 Criminal bly discussion sessions. The dispute came Code with the international conventions and out as what could be described as a “tie,” treaties ratified by Bolivia, which are con- ending in the drafting of Art. 15 of today’s sidered under Bolivian law to have the same Constitution: “All people have the right to legal force as the Constitution. Such treaties life and physical, psychological, and sexual include the Convention on the Elimination integrity (...).8” of All Forms of Discrimination Against Women and the Inter-American Convention This incident demonstrated to women’s on the Prevention, Punishment and Eradica- organizations and pro-rights activists that tion of Violence against Women. conservatism had not been defeated, but
9 The initiative was proposed by Representative Patricia 6 http://cimacnoticias.com.mx/node/57530 Mancilla and IPAS (International Projects Assistance Ser- 7 http://www.coordinadoradelamujer.org.bo/web/index. vices), a non-governmental organization dedicated to eli- php/noticia/mostrar/id/9 minating avoidable deaths and disabilities attributable to 8 Article 15, paragraph I. of the Constitution, enacted on Fe- unsafe abortions. See: http://www.ipas.org/es-MX/Who- bruary 7, 2009. We-Are.aspx From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 4
The appeal for unconstitutionality sought to crimes, but in the cabinet, we will de- remove the legality of 13 articles contained bate (on) discussions underway in public in the Criminal Code. While the intention opinion, so that Bolivia, the cabinet, or the was for these efforts to pass under the radar, administration will have a position.” This the proposal ended up being made pub- statement reinforces the idea of abortion as lic, and took on the form of a plebiscite, a crime, and was enthusiastically supported when the Constitutional Court decided by the vice president and parliamentary to consult with a variety of organizations representatives, who did not hesitate to talk and jurists before making a decision about about “murder,” “agents,” and “imperialist decriminalization.10 This action opened up conspiracies,” as well as the intentions of two scenarios: one political and the other foreign NGOs to create infighting. There legal, establishing the conditions that we are was talk of “sin,” and it was even said that facing today in the debate on the Bolivian in the worldview of indigenous peoples, Criminal System Code. the Pachamama punishes abortions. Mean- while, several ministers, including Carlos On July 17, 2013, President Evo Morales Romero, Roberto Aguilar, Teresa Morales, stated: “I am no expert on the abortion and Amanda Dávila, all spoke out in favor issue; it needs to be debated. Of course, of beginning the debate to move towards in my understanding, all abortions are decriminalization.
10 Several organizations sent their contributions and the Pla- tform for the Defense of Life filed 50,000 signatures to the This made decriminalization of abortion Constitutional Court in Sucre to reject the action. Unfortu- an uncomfortable issue within the Socialist nately, the TCP, in its attempt to placate everyone, ended up with Judge Cusi declaring: “The idea is to make sure ever- Movement (MAS). The issue caused internal yone is happy with the decision, with no one coming out on confrontations, nd alike no other issue before, the losing end, which is rather complicated and difficult to achieve.” This reveals the true nature of the basis for the brought existing contradictions to light, until Court’s decision. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 5
reaching the point that the issue was left on passed on February 5, 2014, denied wom- the sidelines, convincing the persons behind en the right to choose, rather moving to a the proposal and related organizations that it position of blaming and criminalizing those was not the right time, insisting that the strat- who have chosen to have an abortion: egy would be to make positions more flexible and wait for a better opportunity, such as the “...And therefore, it must be clar- Criminal Code Bill.11 ified that while the Constitution guarantees sexual and reproductive Those representing, on the one hand the rights, according to Art. 66, the law most progressive, and on the other, conser- in no way provides that repro- vative interests, were the parties most ex- ductive rights involve a volun- posed. Such parties included activists, pol- tary interruption of pregnan- iticians, and the media, but a clear message c y, and therefore, the exercise of was also sent to the Constitutional Court, sexual and reproductive rights does which, in addition to the claims by Vice not include the right to abortion” President García Linera, sealed the fate of (cited on page 9 of the ruling, sec- the legal action. tion I.3, paragraph III).
Other reasons presented12 by the vice pres- “The legal definition of abortion ident, which were included in the Consti- comes in response to constitutional tutional Court’s judgement No. 206/2014, principles based on respect for life... Consequently, the fact that wom- 11 Boris Miranda. “ The Difficult Road to Decriminalization: The Time has Come” [online]. The disagreement n ° 5, en have to subject themselves published on August 4, 2013.
Criminal Code, endangering filed against Articles 264 and 265, relating their rights and those of anoth- to abortion followed by injury or death, er being, and putting their own and the “honoris causa” abortion.14 In well-being at risk, is nothing something considered to be triumph, it also more than a criminal act, which eliminates the requirement to obtain judicial from no point of view can be a justi- authorization and initiating a criminal case, fication for decriminalizing abortion” which had been established as prerequisites (cited on page 9 of the ruling, sec- to performing an unpunishable abortion15; tion I.3, paragraph IV). the only thing now required is to file the corresponding complaint. The Constitutional Court ruling, amidst its argumentative ambiguity, does effectively While it is feasible to file another appeal for declare the constitutionality of prohibiting unconstitutionality against the criminaliza- abortion, as established in Art. 263 of the tion of abortion in the future, such appeal Criminal Code,13 and rejects the appeal would have to be based on reasons other
13 The court argues the following: “...it is, however, not possi- than those invoked in the rejected appeal. ble for the Court, through constitutional actions, to impose Until then, the constitutional ruling breathes a certain type of morality or a conception of what is good or bad, basing itself on an issue to be resolved by each in- dividual person, something that cannot be required by the the implanted embryo is cause enough for the Legislature Government or its agencies. To this effect, the Court con- to use all types of public policies as necessary to protect siders that life, and anything that could potentially genera- the embryo, necessarily including criminal law, during the te it, to be protected by our fundamental Law, including a embryo’s most advanced stages of development. These as- pregnancy per se, and provided that it has been the result of pects lead to declaring the constitutionality of Art. 263 of a freely-made decision, does not impliy a threat to women’s the Criminal Code in the terms detailed above.” health, as it does not place it on the same level as a disease 14 The ruling was passed with four votes in favor and three or a threat to personal well-being, cruel, inhumane, or de- votes against. For more information on the ruling, see the grading treatment. comparative table included as an Appendix hereto. Therefore, the Plurally National Constitutional Court con- 15 Unpunishable abortion is provided for in Article 266 in ca- cludes that an unconditional abortion at all stages of the ses of rape, abduction not followed by marriage, statutory embryo’s development is not admissible, and that creating a rape (sexual intercourse with a consenting minor), and in- policy of constitutional protection to the right to the life of cest, and when the life or health of the mother is at risk. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 7
new life into prohibition, and restricts de- Code. Instead of this, he fears that concept criminalization initiatives to efforts aimed at of disobedience may be restored, or other expanding the margins of exceptionality. controversial articles be maintained. These are both concepts that were applied with This allows us to understand the origins of great discretion during the dictatorships. the proposal that was passed last September Such rules include Art. 294 of the Criminal 2017 in the Chamber of Representatives Code, which provided for two to four years and this month in the Senate. The proposal of prison for persons who “take on the expands the grounds for an unpunishable rights of the people.16” abortion, but leaves criminalization of and sanctions for abortion intact. For this reason, we can only use the initial bill as a point of reference (provided in The Proposal in the Criminal System the 3rd Session of Representatives held on Code March 7, 2017), and the information shared by activists who have been involved in the The proposal passed in extenso to the Crim- process. Both sources include statements inal Code within the Chamber of Repre- and news to further explain the situation.17 sentatives, and which is under debate in the Senate, is not available to the public. Looking further, we find that the initial bill This fact has generated and fed into sensi- never looked at decriminalization, since tive feelings on its scope and other issues.
Former ombudsman Waldo Albarracín 16 http://paginasiete.bo/nacional/2017/10/28/hay-inten- expressed concern that crimes including cion-codigo-penal-instrumento-politico157403.html 17 The text used in this article would be the final version, pas- forced disappearance and pimping would sed by both chambers. However, the fact that there is no official version contributes to uncertainty on the issue, and be eliminated from the new Criminal readers are advised that there could be changes to the text that is eventually passed. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 8
the Constitutional Court ruling protected or is caring for senior citizens, persons with the prohibition on abortion for now. The disabilities, or minors, whether blood rela- strategy of MAS assembly representatives tives or not, or if she is a student. and some NGO’s needed to be adjusted, limiting it to extending the applicability of In a second section, it established that abor- exceptions as a way to debilitate and reduce tion could be practiced during any stage of the field of application for applying penal- pregnancy when there is a risk to a woman’s ties to abortion. life or overall health, when deformations were found that would put the fetus’s life at A single article was proposed to intensify the risk, or when the pregnancy was the result penalties in abortion18 without the woman’s of assisted reproduction performed without consent, going so far as to apply the penalty the woman’s consent, rape, or incest, and if for femicide in cases leading to a woman’s it involved a [minor] girl or adolescent. death. The bill provided19 that abortion would not be considered an offense when Today, according to the sources consulted, the abortion was performed during the first the current version eliminates the grounds eight weeks of pregnancy, only one time, that involved living on the street or in pover- and if the woman was living on the ty, lacking the resources necessary to main- street or in poverty, or if she declared tain herself or her family. It also eliminates that she did not have the sufficient fi- the reference to the abortion being prac- nancial resources to maintain herself ticed at any stage in pregnancy, includes the or her family, if she is already a mother caveat of “one time only,” and now moves to reinforce the reasons and the procedure 18 Caused without free and express consent, resulting from involving conscientious objection. any type of violence. 19 Article 157 of the bill, entitled APL No 122 Criminal Sys- tem, distributed at the 3rd session on March 7, 2017. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 9
More worrisome here is that, as an effect Applicability Problems of the Constitutional Court’s ruling, cer- tain time-related limitations are imposed: In the past, two major obstacles have existed “Before eight weeks of pregnancy,” for the to applying unpunishable abortion, wheth- practice of unpunishable abortion. This er as a result of a social double standard condition does not exist in the current leg- cloaked in “conscientious objection,” or islation. It also eliminates from the bill the because of bureaucratic prerequisites that possibility for the measure to be applied at required a criminal complaint be filed to any time during pregnancy. then gain court authorization for the abor- tion. For these reasons, the idea is to try to It is worth pointing out that, in the current avoid that this repeats itself, incorporating version, there is no explicit sanction pro- into the bill the inescapable obligation of vided for medical personnel who intervene the health system and healthcare estab- with the woman’s consent, and the provision lishments to comply with these provisions, was eliminated providing that attempted making it impossible to allege conscientious abortion was not punishable. This last issue objection. could be exploited by sectors of society that are opposed to decriminalization to try and The bill also seeks to avoid requirements and criminalize such attempt. While this goal future conditions to be imposed, which in of expanding the grounds for unpunishable practice make applicability more difficult or abortion does have some success, it does not impossible. The only requirement it provides eliminate the criminalization of abortion for is filling out a consent form and identi- and leaves sanctions intact. fying the grounds and circumstances sur- rounding the decision. However, the question remains as to just how feasible it may be to From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 10
perform an unpunishable abortion based on would have to justify the legality and valid- the new grounds, taking into consideration ity of the reasons or situations that cause the fact that there are no coercive mecha- them to adopt such a measure. nisms and that for years, the double standard served to make it more difficult and even This leaves behind the moral discussions impossible to use abortion in cases involving on whether a fertilized egg is considered minor victims of rape or incest, based on the to have life, or when exactly is the fetus concept of conscientious objection. This is considered a person that is subject to legal an excuse that, albeit with subtle changes, protection. The legislation has moved this remains legal. debate into the woman’s condition as either a victim or a guilty party. The underlying Balance logic is based on the grounds for impunity: whether she consented to the sexual rela- The only thing contained in the proposal is tion. This makes for a crude revelation of an expansion of the grounds for applying the fact that what has been and continues an unpunishable abortion. This means that to be in dispute is a woman’s autonomy (something that may serve to alleviate the over her body and the control over her own spiritual misgivings of some people) abor- sexuality.20 tion continues and will continue to be con- sidered a crime in our country. However, This reductionism covers up the fact that despite the attempts to avoid it, it does open unwanted pregnancies are not the mere the door to a quasi-judicial process in which result of sexual relations - whether rape or women could have access to abortion based consensual -, but rather reflects the structur- on one of the grounds laid out in the bill. al exercise of violence imposed by society
This means that, one way or another, they 20 http://www.opinion.com.bo/opinion/articu- los/2017/0512/noticias.php?id=219009 From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 11
on women. Beginning ever since childhood, Risks of a Counter Attack such imposition teaches us to be submis- sive and assigns gender roles, pushing us The battle to decriminalize abortion is evi- toward maternity and denying us informa- denced through attacks and counter attacks. tion about sexual and reproductive health. Both progress and regression have been ev- Society continues to deprive us of access to idenced, for one side and for the other, ever effective birth control methods, and con- since the Constitution was debated. The demns us to either carrying an unwanted lack of a definitive position has now caused pregnancy to term or seeking out a clandes- the issue to pop up in every small debate tine abortion during which we could lose relating to laws and policies somehow relat- our lives. ing to abortion. This is why conservativism has announced that it will push back on the In 2014, we were happy to gain a partial Civil Code bill, aiming to focus on the issue victory, the requirement for judicial au- of what defines a person and the rights of thorization was eliminated, providing that the unborn. the filing of a complaint was deemed to be a sufficient prerequisite to performing an We cannot allow ourselves to be deceived unpunishable abortion in cases of rape or into finding this to be a victory, considering incest. However, it is only now, years later, that the proposal to expand the scope of that we are able to clearly see the conse- unpunishable abortion broadens the margin quences of stopping that debate and not of exceptionality but at the same time main- speaking about it anymore, and of the court tains the law’s intention to restrict abortion ruling that consecrated the constitutionality in our country.21 of prohibitions. 21 Fabián Restivo. “Politically incorrect” [online]. Published on October 4, 2017.
Appendix
COMPARATIVE ANALYSIS OF THE CURRENT CRIMINAL CODE, THE APPEAL FOR UNCONSTITUTIONALITY, THE CONSTITUTIONAL COURT RULING, AND THE CRIMINAL SYSTEM CODE BILL
ARTICLES ON ABORTION ARTICLES ALLEGATIONS BY CONSTITUTIONAL COURT CHAGES TO THE IN THE CRIMINAL CODE AFFECTED BY ÁLVARO GARCÍA LINERA AS RULING No 0206/2014 CRIMINAL SYSTEM CODE THE APPEAL FOR PRESIDENT OF THE (preliminary version as of UNCONSTITU- ASSEMBLY 21/10/2017, apparently passed TIONALITY by the two chambers)
Art. 263 provides: “Anyone who 263 “In reference to Art. 263, 264, and The TCP concludes that: “an Article 153. (Abortion). causes the death of a fetus in 265 of the Criminal Code, we must unconditional abortion in all I. Any person who causes an abortion the mother’s womb or causes clarify that none of the appealed stages of the embryo’s develop- to a pregnant woman without her its premature expulsion shall be rules establish a malicious intent in ment is not admissible under express and free consent, or consent sanctioned as follows: performance of the abortion, since the constitution, and creating a of her legal representative when she is 1) With two to six years in prison the criminal rules only describe an constitutional protection policy to the unable to express her own will for any if the abortion is performed alleged behavior, assigning to it a right to life of the embryo is sufficient reason, shall be punished with three (3) without the woman’s consent, or prison sentence. In terms of the fact grounds for the legislative body to use to ten (10) years of prison. if she is under the age of 16. that a woman would be sanctioned all types of public policies as neces- II. The sanction shall be increased by With one to three years in prison who, supposedly in the exercise of sary to protect it. This necessarily one third when the abortion is caused if it is practiced with the woman’s her reproductive rights, decides to incudes Criminal law in the most ad- by any act of violence against the consent. abort in safe conditions and before vanced stages of an embryo’s develop- woman. 2) With one to three years of the 12th week of pregnancy, are ment, which provokes the declaration III. When, as a consequence of any prison if the woman provided her extremes that are not regulated at all of unconstitutionality of Art. 263 of abortion practiced without consent, a consent. A woman’s attempt in in the law. the Criminal Code.” woman dies, the sanction applied shall this matter is not punishable. Therefore, it must be clarified that be that corresponding to femicide. while the Constitution guarantees IV. Any woman who voluntarily inter- sexual and reproductive rights, rupts her pregnancy outside of those according to Art. 66, no rule at all cases provided under paragraph V of establishes reproductive rights this article, shall be penalized with one to be the right to voluntarily (1) to three (3) years of prison. interrupt the pregnancy. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 13
Therefore, the exercise of sexual and V. It shall not be considered a criminal reproductive rights does not mean offense when the voluntary interrup- the right to abortion.” tion of pregnancy is requested by “The inclusion of abortion in the the woman and any of the following law is in response to constitutional circumstances are involved: principles based on respect for life… 1. When it is performed during the first Consequently, the fact that wom- eight (8) weeks of pregnancy, and: en have to subject themselves a. She cares for senior citizens, disabled to unhealthy and clandestine persons, or other minors, whether conditions, going against the blood relations or not, and b. when she Criminal Code, endangering is a student. their rights and those of anoth- 2. It shall neither be a criminal offense er being, and putting their own when: well-being at risk, is nothing a. It is performed to prevent a present more than a criminal act, or future risk to the pregnant woman’s which from no point of view can be life; a justification for decriminalizing b. Is performed to prevent a present or abortion.” future risk to the overall health of the pregnant woman; c. Deformations are detected in the fetus that would pose a threat to its remaining alive; d. It is the consequence of assisted reproduction performed without the woman’s consent; e. The pregnancy is the consequence of rape or incest; or f. The pregnant female is a child or adolescent. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 14
VI. The national health system, free of charge, must ensure the freedom of decision health , and life of girls, adolescents, and woman, and cannot deny the interruption of pregnancy or comprehensive healthcare in the cases set out in the preceding paragraph, alleging conscientious objection. This is an induvial decision of the medical or health personnel that are directly involved in performing the medial procedure; such objections must be stated beforehand in writing. This paragraph is not applicable in urgent or serious cases in which intervention is indispensable. All public health services must ensure that attention is effectively provided by another health professional who does not object thereto. VII. The only prerequisite for in- terrupting a pregnancy in the cases established in paragraph V shall be filling out a consent form by the woman and indicating the grounds and circumstances involved in her decision, without requiring any other procedure, requirement or prerequisite of any kind. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 15
Art. 264 describes abortion 264 followed injury or death: ·When abortion with the consent of the woman is followed by injury, the penalty shall be prison of one to four years, and if her death were also caused, the sanction shall be increased by one-half. When a non-consented abortion results in injury, the person responsible shall serve the penalty of one to seven years of prison. If said action causes death, the sanction shall be for nine years of prison.
Art. 265.- “Aborto honoris cau- 265 Irrelevant due to lack of arguments. sa,” to save the woman’s honor, whether by herself of third par- ties, with her consent, will receive the penalty of six months to two years, increasing this amount by one third if it causes her death. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 16
Unpunishable abortion (Art. 266 266º “In terms of the lack of need for “No criminal complaint shall be of the Criminal Code) involves: judicial intervention or authoriza- required, nor any formal accusa- “When the abortion is the tion for the abortion, the legislator tion, much less a ruling. It shall be consequence of the crime of makes this prevision, based on the sufficient for the woman to go to a rape, abduction not followed by fact that the Judge or the Prosecutor, public or private health center to marriage, statutory rape or incest, representing the State and the victim, perform an abortion – provided that no sanction whatsoever shall be mention that judicial authorization the pregnancy is the result of a crime applied, provided that a criminal is absolutely necessary, provided that and communicates this decision to a case has been initiated. It shall the conception in these cases is the competent public authority. This way, not be punishable either if the result of a crime. Consequently, it is the medical professional who is to per- abortion was performed to avoid precisely the judicial authority that form the abortion shall have express danger to the life and health of shall evaluate that analyze the autho- declaration justifying performance of the mother if such danger could rization to interrupt the pregnancy. the abortion.” not be otherwise avoided. In Consequently, it is the State (through both cases ,the abortion must be the judicial authority) and not the The rule is constitutional with the performed by a doctor with the private parties, that shall make any elimination of the phrases: “…provid- woman’s consent and the judicial determination regarding the inter- ed that a criminal complaint has been authorization. ruption of pregnancy as a result of filed” and “…judicial authorization as aggression to the victim. Therefore, corresponds.” there is no violation of rights at all, in any case, providing judicial protection as per Art. 115 of the Criminal Code. Said article does not establish a criminal rule, but rather a legal excuse for absolution; in other words, grounds for excluding any criminal liability. For this to be valid and effective during a criminal case, there must be judicial authorization; otherwise, a prison penalty could be assigned. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 17
Art. 267.- unpremeditated abor- tion, with the pregnancy being notorious, whomever causes the abortion with violence but with- out the intention to do so shall be sanctioned with three months to three years of prison.
Art. 267 bis (included through Law No. 348) whoever, through physical, psychological, or sexual violence, causes an abortion, shall be penalized with four to eight years of prison
Art. 268, wrongful abortion, anyone who cases it shall be penalized to perform work for up to one year.
Art. 269, regarding the habitual 269 practice of abortion, one to six years. 18
From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia
Author: M. Cecilia Chacón R.
Published by: Fundación Rosa Luxemburg Andean Regional Office Miravalle N24-728 y Zaldumbide Phone: (593-2) 2553771 6046945 / 6046946 [email protected] / www.rosalux.org.ec Quito· Ecuador
Cover and page design: Freddy Coello First published in Spanish in December 2017
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