Ratio Legis Differences in Abortion Provisions in Law Number 36 of 2009 Concerning Health and the Criminal Code

Abstract

This research seeks to identify, describe, and analyze why the health law regulates abortion for rape victims while under the Criminal Code abortion is illegal and regarded a crime, as well as the abortion provisions for rape victims that should be regulated in the Health Law. In this paper, normative legal research was conducted. This research focuses on the Legis Ratio of Differences in Abortion Provisions in Law No. 36 of 2009 Concerning Health and the Criminal Code. The method utilized is the statutory approach. The findings revealed that the prohibition against abortion, which is a Dutch heritage, is prohibited in the Criminal Code because abortion is regarded antithetical to natural law and cannot be ethically justified in Greek and Roman law. The Health Law is permitted under the condition that there is an indication of a medical emergency and because the pregnancy is caused by rape, taking into account the good name of a woman or her family, if the pregnancy is caused by rape and can cause psychological trauma to the rape victim, including for the victim's unborn child. Nevertheless, the provisions in the health law do not provide legal certainty that the time limit for performing abortions on rape victims is six weeks/forty days from the first day of menstruation; this time is deemed insufficient to provide protection for victims due to the limited time required to obtain consent to allow abortions or not.