In Argentina, demonstrations are growing in support of doctor Leandro Rodríguez Lastra, who was found guilty by the justice system for failing to perform a 22-week pregnancy abortion.
On April 2, 2017, Dr. Leandro Rodríguez Lastra was called to see an emergency patient at Moguillansky Hospital, Cipolletti in Río Negro, a province of Argentina. As head gynecologist, the case presented to him was a woman, pregnant at 22 weeks’ gestation, with an abortion in progress caused by the intake of misoprostol. The abortive drug had been supplied by the clandestine abortionist group “La Revuelta”. The woman reported having been raped (for which she never made legal complaint) and asked the doctors to perform an abortion. As shown on ultrasound, the baby was perfectly formed and his weight exceeded 500 grams or 1.1 pounds. The mother’s symptoms, however, included respiratory issues, contractions and fever, for which Dr. Rodríguez Lastra provided treatment and medication. He did not administer the second course of the abortion medication. Thus he was able to completely reverse damage caused by the abortive maneuvers. At the patient’s insistence she wanted an abortion, the doctor informed the health authorities in the province of Río Negro of the situation.
According to the expert advice of her physicians – provided in a report at the court case –if the abortive process had been allowed to continue, the woman’s health would have been jeopardized. In addition to the symptoms exhibited needing emergency treatment:
“The mother’s possible risks if ending the pregnancy at 22 weeks are rupture and perforation of the uterus. (…) Other complications in the interruption of pregnancy in the 2nd quarter are bleeding and infections that can lead to hemorrhagic shock and septicemia. Another complication in the interruption of pregnancy in the 2nd trimester is related to anesthesia.”
Otherwise phrased, Dr. Rodríguez Lastra followed the protocol he felt best for his patient according to his specialty in gynecology and best for the obstetric symptoms presented by the patient. Also, he followed the constitutional law of Argentina, which forbids abortion.
Delivering the baby at such a premature stage is sometimes possible but here not a good solution; chances of the child surviving would likely have lead to a host of possibly lifetime health issues. Such was the opinion of the forensic Corp of the Judiciary, stating in its long list that potential side-effects could range anywhere from eating disorders to mental retardation or even cerebral palsy. This opinion was seconded by the Ministry of Health.
Based on the facts described, a provincial deputy named Marta Milesi, known for her pro-abortion activism, filed a formal complaint against Dr. Rodríguez Lastra and another doctor on her team, accusing them of noncompliance with the duties of a public official for not having performed the abortion. The second doctor was dismissed in the case, leaving Dr. Leandro Rodríguez Lastra as the sole defendant. On behalf of her client, the patient, she alleged the doctor “did not comply with the law” in completing the abortion, because his [stabilizing] treatment “applied medications to inhibit the contractions that the young pregnant woman was having.”
Despite having no medical training Ms. Milesi ignored the symptoms with which the patient presented, such as breathing issues which had to be addressed. A mother and child’s health are intertwined during pregnancy. Only a medical professional should be making these determinations after evaluation of the patient’s symptoms. There are more health risks with abortion than with delivery. His first duty was to stabilize the patient, not adhere to the patient’s demands for the treatment she as a layman wanted, which were not in her best physical interest. No patient anywhere can seek a physician’s help and demand a particular treatment.
The Legal Framework: There is No Legal Abortion in Argentina
In order to fully understand the case it is necessary to address two issues. The first is the current Argentine legislation in the field of defense of life, and the second is the illegality by those who promote anti-life policies. To start, the law takes its cue from Argentina’s highest rule of the land, the National Constitution (1994), which provides protection of every life from the moment of conception. Then in 2015 the new Civil and Commercial Code went into effect, with Article 19 expressly stating: “The existence of the human person begins with conception.” At the provincial level, the Constitution of Río Negro in Article 59 states: “Health is an essential right and social good in accordance with human dignity.” It continues, “Health care “Includes managing biological and socio-environmental risks of all people from conception, to prevent avoidable illness or death.” That is to say, that the entire Argentine legal system is ordered to defend the right to life.
However, Article 86 of the Argentine Penal Code (1921) establishes cases where so-called therapeutic, sentimental or eugenic abortion is exempt from prosecution. This norm, which in no way speaks of “legal abortion”, has long been questioned, and today there is no doubt that it does not supersede constitutionality. Bear in mind the first treaty on the subject was the Universal Declaration of Human Rights by the United Nations in 1948. Obviously if a lower norm, such as the Penal Code, violates a later and higher standard, such as the U.N. treaty, it is the latter that must prevail.Yet despite the primacy of the Constitutional right to life, pro-abortion forces continue to attempt to decriminalize abortion on the basis of the above-mentioned Article 86 of the Penal Code or human rights treaties. In addition to this subversion of the nation’s legal order, they furthermore try to expand upon Article 86, so as to label all abortion legal with these “justifications.”
This abusive interpretation of Article 86 came to the fore in 2012, when the nation’s Supreme Court in the ruling of F.A.L. (Fallu Fuentes Aurora Luisa) delivered an unconstitutional ruling, seeking to force third parties to perform abortions, resulting in criticism from jurists and legal scholars alike. Some provinces are following in the footsteps of this ruling, in trying to use it as a basis to establish abortion.
Abortion is Illegal…but Legal
Cases based on Article 86 of the Penal Code, the F.A.L. ruling, and protocols allowing legal interruption of pregnancy and provincial laws on the subject, are obviously unconstitutional. However, since many judges adhere to anti-life practices, an appropriate judicial resolution in this sense is not always obtained. And this despite the fact that in Argentina, prohibits legal abortion. On August 8, 2018, after the bill to decriminalize abortion obtained a half sanction in the Chamber of Deputies, the Senate rejected this project, still preventing any abortive practice.
Taking into account the interest this case has raised in the media, it is wise to recall that the information conveyed is often presented out-of-context and manipulated. So we hear repeated in headlines a “doctor who refused to do legal abortion” – despite the fact Argentina has is no legal abortion and no doctor is required to perform an abortion.
The Judicial Verdict
On May 21, 2019, the criminal judge hearing the case declared the guilt of Dr. Rodríguez Lastra for having committed the crime of breaching the duties of a public official (Article 248 of the Argentine Criminal Code). Yet he complied with the constitution of the country. Article 248 of the Criminal Code expressly states a public official has a responsibility to comply with the law, even when he is ordered to perform “contrary to national or provincial constitutions or laws.” A ruling is expected sometime in July. The accused is already expected to repeal.
Reaction by the Pro-Life Community
From the start, pro-life citizens and entities have expressed their support and solidarity with the doctor, denouncing this sentence. During the days of the trial, numerous people in the vicinity of the courthouse accompanied Dr. Rodríguez Lastra and his family, waiting hours while holding posters, reciting prayers, and singing songs. We pray in the end, Rodríguez Lastra’s verdict is overturned and he is exonerated, and that the judge orders the payment of his legal costs by the other side. As we lawyers say, we desire justice.
Gabriela Quadri, Esquire, is an Argentinean lawyer and also HLI’s Auxiliary General Advisor at the Organization of American States.