Court rejects appeal of Argentinian doctor found guilty for refusing to abort 23-week-old baby
March 13, 2020 (LifeSiteNews) – The appeal of a doctor who refused to perform a legal late-term abortion on a 23-week pregnant woman was rejected Wednesday by a court in Rio Negro on the grounds that he had not fulfilled his duties as a public functionary in the local public hospital.
Dr. Leandro Rodriguez Lastra’s 14-month suspended prison sentence has been confirmed and he will also be suspended from all public appointments for 28 months, as was decided by the first judges last May.
The decision of the appeals court against the doctor from Cipolletti, in the central province of Rio Negro, included language about women's personal right to “autonomy” and the need to judge the case according to “gender perspective.” One judge even spoke of “obstetrical violence.”
Thanks to this doctor, a two-year-old little boy is alive and well today.
Rodriguez Lastra’s lawyer, Damián Torres, has already indicated that the decision will be submitted to Rio Negro province’s Supreme Court. He told the local press that he considered the decision to be “ideological.”
Santiago Márquez Gauna, the chief public prosecutor, asked for an additional trial to take place in order to determine which “rules of conduct” the doctor will have to comply with in order to avoid being ordered to execute his prison sentence. The judges agreed with this and ordered the new proceedings.
Under Argentinian law, these can include having to live in a determined place, being banned from meeting with certain people or using drugs or alcohol, following psychological or medical treatment, or working for the state or charitable institutions free of charge outside of normal working hours.
In Rodriguez’s case, the public prosecutor has already told the press that he would like to see the doctor follow courses on informed consent, legal pregnancy termination and “gender perspective.”
Márquez Gauna also suggested that besides being banned from public employment, the doctor’s right to practice medicine should also be suspended for 28 months. This demand was not upheld by the judges.
Abortion is still illegal in Argentina, although the federal Congress is in the process of examining a new liberal abortion law for the whole of the country. Under a federal Supreme Court decision that has been approved for Rio Negro by special protocol, pregnancies resulting from rape (theoretically, of a mentally impaired woman) or presenting a risk for the life of the woman may be legally aborted.
In Rio Negro, any woman who claims she has been raped may obtain legal access to abortion on application to a public hospital. She is under no obligation to prove that her pregnancy was the result of sexual assault. However, most doctors in Cipolletti and the neighboring towns are conscientious objectors. Rodriguez Lastra, head of the gynecology department of the public Pedro Moguillansky Hospital in Cipolletti when the woman in the case arrived there two years ago for an abortion, was not listed as a conscientious objector at the time.
The judiciary persecution of Rodriguez Lastra started on flimsy grounds. The 19-year-old woman in the case had at first sought an abortion in the neighboring town of Fernandez Oro where she claimed she had been raped. At the local hospital there, doctors sent her off to a feminist NGO, “La Revuelta.”
The young women presented herself days later at the Cipolletti public hospital, alleging that she had been given Oxaprost (Misoprostol) in order to induce abortion and asking for the abortion to be completed. Dr. Rodriguez considered that she was at risk of having a serious and even life-threatening infection and administered anti-contraction medication. He was also unable to determine whether she had in fact taken abortion-inducing pills.
There was no dilation or bleeding. He judged her to be about five months along and in no condition to receive abortion pills at that stage (chemical abortion is linked to complications for the mother after 10 or 12 weeks pregnancy at the outside).
The woman remained in hospital with her full consent, according to Rodriguez Lastra, in view of receiving a cesarean as soon as her baby would have every chance of surviving the operation. This happened at 7 1/2 months and the baby was born in good health.
Abortion activists then picked up the case in order to fault the doctor for his refusal to kill the child; in particular, they accused him during the subsequent trial of having used “dilatory maneuvres” because he asked for the young woman to have psychiatric screening. Last October, Cipolletto judges decided that he had “never had the intention of performing the abortion.”
The appeal judgment on Wednesday was a divided decision, where one judge considered Rodriguez Lastra not guilty against the two others, Miguel Angel Cardella and Maria Rita Custet Llambí, who went further than the first judges.
Rodriguez Lastra unsuccessfully asked for them to be disqualified on the grounds that the latter had “expressed her position” on the case before hearing it “and should never have intervened.” As for Cardella, he is known to be in favor of abortion.
There is ample evidence of this in his explanatory statement about his vote:
“A woman who is pregnant as a result of rape has the right to access to the medical practice of a non-punishable abortion in public health facilities and the accused obstructed that process,” he wrote, adding, “The accused doctor did not respect the personal autonomy of the woman in the exercise of her medical profession as an employee of the public hospital of the province. Therefore, under the existing medical rule, the gynecologist Rodríguez Lastra was obliged to accompany the abortion process that had been initiated.”
Cardella defined personal autonomy in these terms:
“Since free individual choice of life plans and the adoption of ideals of human excellence are valuable, the state (and other individuals) should not interfere in that choice or adoption.”
He deplored that the victim “was not listened to.”
“Our local law, in the name of which Rodríguez Lastra is accused, regulates article 86 of the Penal Code: When a woman becomes pregnant as a result of rape, that woman has the right to petition the provincial public health authorities to perform an abortion because she wishes not to have the fetus in her body. It is her will, because she is the owner of her body, she decides about it, in this specific case because it was violated; there is no other right above her decision.”
This would be equivalent to an absolute right to abortion, and Cardella made it clear that in these cases there can be no debate or discussion as can exist about “voluntary termination of pregnancy.” “In the context of this case, abortion is permitted because the woman was a victim of a sexual crime of abuse through carnal access.”
Even more radically, he said, “She wanted an abortion, the accused did not take into account her will to decide about her body and health; they made her give birth. That's gender-based and obstetric violence.”
Custet Llambí adopted similar language: “This is about judging the facts within the context of gender inequality and eliminating the generic stereotypes, which are ‘irrational cognitive elements we see as absolute truths’ and that have been socially transmitted.”
She went on to write:
“Once again the law, interpreted from a patriarchal viewpoint, would operate as a trap for the effectiveness of women’s rights and would unjustifiably exculpate those who act against the law, failing in their duties and violating the fundamental rights of pregnant women. The actions analyzed have been executed under an undoubted asymmetry of power (…): the defendant used his position as a medical professional to administer a drug to contain and reverse the process of interrupting the pregnancy initiated by the patient herself, so as not to carry out the act she was demanding, all of this without requiring any consent or providing any explanation.”
It gets worse:
“From a structural, contextual and intersectional approach, it does not escape me that the victim finds herself traversed by multiple vulnerabilities that accompany her gender condition, such as her youth, her quality as a victim of various forms of violence since childhood, to which is added her condition as a pregnant woman resulting from sexual assault, with great difficulty in communicating her opinions and expressions in the debate, to which is added the violence to which she was subjected in the health system that was supposed to assist her. Faced with the intersection of so many vulnerabilities, the accused overpowered the young woman’s self-determination, giving priority to the reproductive function that she symbolized as a woman, over her dignity, over her right to health and to be informed, accompanied, sustained and respected in the process of interrupting the pregnancy, an interruption to which she had a right over any other right or interest.”
“Ignoring a woman’s voice, ignoring her vital needs, subjugating reproductive rights, devastating the psyche and enslaving the body in order to force pregnancy after a rape, means denying the victim’s status as a subject of law and leads to the incarnation of gender violence in its most painful form,” Custet concluded.
Torres, commenting on the decision, called the two judges’ explanations “a mere ideological expression that shows that they did not look at anything in the trial; in fact, they practically do not cite the witnesses or anything that happened in court.” “It’s as if they didn't see it. This is consistent with the challenge we made against these judges prior to our recourse,” he said.
He added that the plainly ideological arguing of the decision made him hopeful that the provincial Supreme Court will reverse it.