When criminalized, abortion has always and everywhere been an underenforced prohibition. Women throughout history who have found themselves pregnant and unwilling to carry the pregnancy to term have found ways of interrupting the process, under the protection of liberal legal frameworks or under the brutal conditions of illegal markets. In these all too normal scenarios, the gap between what the law said in the books and how it operated in practice has always been significant [@luna2000, 523]. This paper seeks to describe the mechanisms employed by Argentinean judges to deal with this undertheorized operation of legal systems in the context of prosecutions for criminal abortions. It is based on a systematic review of judicial decisions on abortion since 1918—the year the first law report was published—to the 1980s, when the legalization of abortion became a social movement demand. It proceeds in the following way.

The first section discusses the issue of lawful departures from legal rules by public officials and lawless judging [@kadish1973; @brand2010]. By considering that under certain conditions public officials (including judges) are justified to act contrary to clear legal commands, this narrow and borderline issue poses difficult challenges to strong ideologies of the rule law, to entrenched role moralities regarding judges, and to the proper locus of democratic law-making authority. But from an external point of view, the less-than-perfect enforcement of certain rules implied in the possibility of departure is not a bug but a feature of most modern legal systems. It is not far-fetched to argue that the underenforcement of criminal provision is the normal situation in any democratic society. This section discusses previous research on the topic with the purpose of identifying the special place of judges in the law-enforcement apparatus vis-à-vis this phenomenon, specially in criminal systems with professional judges in charge of assigning guilt and punishment.

The second section discusses the issue of nonenforcement and underenforcement of vice laws, under which abortion ciminal statutes have generally been filed. This issue is closely related to the rich literature on deviance, and on the use of criminal law for symbolic purposes [@becker1967; @gusfield1968]. This brief discussion frames criminal abortion statutes within a broader set of usages of criminal law. Thus, it sets the groundwork for the empirical inquiry that follows.

The third section discusses the way the data was gathered and how it was analyzed. It also discusses alternative methodological approaches that were considered but not followed. The systematic review of law journals followed for this inquiry produced a rather complete picture of what the legal field considered important in the period, while failing to reveal the full scope of actual judicial practices. However, the decisions gathered are informative of the factual patterns that systematically led some women (and not others) to be judged. It described how the law-enforcement apparatus worked (and how it failed to work). These decisions also reveal the shifting doctrinal reasons given by judges to limit the reach of criminal punishment, shifts that happened—I pose—at the pace of rapid social change.

The fourth section presents the findings and analyzes the data. Throughout the 20th century, Argentinean criminal judges built doctrinal walls around these crimes to prevent punishing women who interrupted their pregnancies, either too harshly or altogether. In a first stage, adhering to strict evidentiary thresholds, they simply considered that abortion was a crime that was impossible to prove beyond a reasonable doubt, for in most cases it was impossible to demonstrate that an indicted woman was indeed pregnant when abortion maneauvers were carried out. When technological change made identifying pregnancies slightly more certain, they insisted that the evidentiary threshold to produce a criminal conviction had not been met. But in the 1960s those reasons shifted from matters of evidence to matters of principle: a handful of judges from the city of Buenos Aires began to question the patterns that only led poor women to be criminalized for interrupting their pregnancies. In doing so, they implicitly questioned the validity of criminalization tout court, thus anticipating liberalization arguments that would be deployed by women’s rigths advocates a decade later. These handufl of judges inaugurated a period of intense judicial disagreement that foreshadowed the process of repolitization the rule experienced through the 1980s, 1990s and 2000s [@post2010, 1343]. The fifth and final section offers a brief conclusion and discusses the theoretical significance of these findings.