Eugenic Reasoning in Legal Phrasing?

Argentina’s strict anti-abortion laws got a minor make-over recently, as the Supreme Court of Argentina has ruled that rape victims will not be persecuted for having abortions.  The supreme court unanimously backed the decision of allowing a 15-year-old girl, who endured years of sexual abuse by her stepfather, to terminate her pregnancy.  “However, the judges said that their decision was not part of a discussion about the legalisation of abortion in Argentina, but just a clarification of existing laws” (see article).

The controversy was centred around Section 2, Article 86 of the Argentine penal code, which states that “abortion is not a punishable act ‘if the pregnancy stems from a rape or an attack on the modesty of a woman of feeble mind’” (see article).  The horrible suffering of the poor 15-year old aside, it is interesting to note that the Argentinian law’s phrasing includes “feeble mindedness” in its allowances for legal abortions.  Curiously (and I think quite tellingly), the point of debate in interpreting the law had to do with whether or not all rape victims or just those who are deemed “feeble minded” should be allowed to terminate their pregnancies.

Now, putting the phrase “feeble minded” in the sentence cannot have anything to do with informed consent (and the fact that some individuals might be deemed incapable of giving it) since the law pertains to rape cases, which, by their very definition, are instances where neither informed nor any other kind of consent can or ever is given.  What might be the reason the phrase “feeble minded” made its way into the sentence and why might it be unclear to those interpreting the law whether or not it covered all or just “feeble minded” rape victims?  If I were to venture a guess, I would say that eugenic reasoning is likely responsible for the legal phrasing the judges had such difficulty interpreting.

2 thoughts on “Eugenic Reasoning in Legal Phrasing?

  1. I’m not sure if this point would apply to the original language, but there does seem to be some ambiguity concerning the english translation.

    “abortion is not a punishable act ‘if the pregnancy stems from a rape or an attack on the modesty of a woman of feeble mind’”

    If the phrase “attack on the modesty” is meant to imply something other than rape in the sense of coerced, non-consensual sexual activity (for example, manipulation or exploitation), and I think the phrase was meant to connote something different than rape (else there’s no reason to include it), then it wouldn’t be clear if the victim has to be a “feeble-minded” woman or not. This is because the intent might have been to permit abortion only in cases where a “feeble-minded” woman is either raped or manipulated into having sex. Alternatively, the intent could have been to permit abortion in cases where any woman is raped or where “feeble-minded” women are manipulated into having sex.

    If I’m right that “attack on the modesty” is meant to imply the possibility of something other than rape, then the issues may not be a matter of eugenics so much as the patronization or infantilization of people with developmental disabilities, which of course is related to eugenic attitudes but doesn’t have to have anything to do with reproduction.

    I’d be interested in hearing more about what you had in mind with respect to “eugenic reasoning”. I suspect I won’t disagree; I’m only pointing out here what I see as an ambiguity that could explain why the law needed to be clarified.

  2. Thanks for the question, Mark. It got me thinking a bit more about the case! I think I agree with you. I think that the points you bring up may well have been at the core of the discussions that led to the eventual ruling. What I had in mind when I used the phrase “eugenic reasoning” was something broader than just having to do with reproduction; it was meant to include patronization, but it was also meant to hint at the legalization of abortion in cases where individuals labelled as “feeble minded” are concerned. There was clearly an uncertainty regarding the case of the 15 year old girl, which suggests that not all rape victims were considered to be eligible for a legal abortion. This is why it sounds to me like the phrase “feeble minded” entered into the sentence due to at least some tacit eugenic reasoning. It could well have been just a patronizing attitude (i.e. a feeble minded woman cannot take care of her child), but legalized abortion rather than adoption, especially when abortion is illegal otherwise, seems to suggest a value judgment regarding the fetus (and eventual child) rather than merely the capacity of the woman to take care of the baby. I could well be reading too far into this, but it wouldn’t surprise me if there was something to my suspicions. Now, obviously, with the inclusion of all rape victims in the category of legalized abortion, the “eugenic reasoning” behind the original phrasing (if that’s what it in fact was) may well be losing its grip on those who are re-interpreting the law. If that’s the case, so much the better for Argentina. I’m also not sure when the law was written and who was responsible for the phrasing (that might well shed some light on the tacit assumptions lurking in the background).

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