BY: VICENTE ANTONIO ZEBALLOS SALINAS
Ten days ago, in his regular column in a national newspaper, Dr. Elmer Huertas warned regarding a Decisional Memorandum of December 23 of the United States Food and Drug Administration (FDA), pointing out that “the AOE (morning-following-pill) ) prevents pregnancy by acting on ovulation, which occurs before nesting or implantation, and since the data do not support that the drug affects implantation, ECPs do not terminate the pregnancy.
In simple words, the next pill – which must be taken within five days following sexual intercourse or rape – does not affect fertilization or fertilization, nesting or implantation, so if the embryo was already formed before or following taking the medicine, the pregnancy will continue without interruption. And precisely on these scientific opinions the Constitutional Court has just issued a sentence.
We have stated that the current Court is of a conservative tendency and its resolutions express it as such; however, the scientific evidence is compelling as well as the context of comparative law where the perspective is permissive, reasonable, legitimate, it can even be accessed without a prescription like France, the United Kingdom, Canada or the United States; which did not give room for a different position.
But, our constitutional body had an oscillating position, because in a 2006 ruling, it was conceptualized as a contraceptive method, with the Ministry of Health having to guarantee its distribution; Years later, in 2009, he modified his position: “there are enough elements that lead to a reasonable doubt regarding the way in which the AOE acts on the endometrium and its possible anti-implantation effect, which would fatally affect the one conceived in the continuation of its vital process”, prohibiting its distribution in public health services, but maintaining its distribution in private services – only those who have the money to acquire it might access it -, manifests discrimination and incomprehensible discernment regarding the scientific evidence manifested in its argumentation.
However, in 2016, for the purpose of a precautionary measure raised within the amparo process in which the current decision of the Constitutional Court originated, it was ordered that the State distribute the emergency oral contraceptive free of charge, which to date it keeps.
The truth is that the 2009 sentence, in its foundation 52, left open the possibility of adapting to new circumstances, with meetings and coherent and uniform scientific advances: “(This) decision might in no way claim to be immutable… it must be clear that If such levels of consensus were to be produced in the future regarding the safety of levonorgestrel (the morning-following pill) for the conceived, obviously their position would have to be changed”.
And under a new context, influenced by scientific evidence and reports from the WHO, PAHO, FDA and MINSA, concluding that the morning-following pill is not an abortifacient, the Constitutional Court decides to change that position, that the State distribute it free of charge to those who cannot buy it, recognizing it as a method of family planning and its inclusion in the kit for dealing with cases of sexual violence, mainly for girls and adolescents.
The latter allows us to enter a very strong and unfair reality, it is the only alternative for many victims of rape and thus avoid a forced pregnancy, since even in these cases abortion in Peru is criminalized.
Let us share the statistical incidents of MINSA, collected by the Court in its ruling: “in 2019, 564 victims of rape were treated with the sexual emergency kit; in 2020, to 1,325 and in 2021, to 2,519. Of this last figure, 65% correspond to girls, boys and adolescents. […] According to the Online Live Birth Certificate Registration System, 1,699 minors between the ages of 12 and 17 became mothers in 2021. Statistics show that 75% of pregnancies in minors under 15 years of age are the product of violence sexual”.
When we find ourselves in a regressive scenario, with respect to rights and freedoms, it is pertinent that scientific reports -as it should always be- are summoned as an argument to help make the most fair, balanced decisions and with a deep social focus; which also forces the State to assume its public policies responsibly and opportunely, in the urgency demanded by the serious social contrasts in which our fast-paced society is immersed.
