JURIDICAL ANALYSIS OF THE CRIME OF ABORTION (Study of Decision Number 40/Pid.B/2020/PN Wno)

This study aims to find out the judge's considerations in decision Number 40/Pid.B/2020/PN Wno and to find out the decision in case Number 40/Pid.B/2020/PN Wno in terms of positive law in Indonesia. The type of research used in this study is normative legal research or library research with 3 approaches, namely the statutory approach, the case approach and the conceptual approach. The results of this study indicate that the basis for the judge's considerations in imposing a sentence on the case referred to in the judge's decision Number 40/Pid.B/2020/PN Wno is juridical in nature consisting of the public prosecutor's indictment, witness testimony, defendant's statement, evidence, and Apart from that, the articles in the criminal code are non-juridical in nature, namely the reason for the defendant's actions and the consequences of the defendant's actions. That the crime of abortion has violated the provisions of Article 346 of the Criminal Code, this can be seen because the elements in accordance with that article have been fulfilled. Because of the above considerations, the judge decided that the defendant was found guilty so that the defendant had to serve a prison sentence of 1 year and 10 months.


INTRODUCTION
Adolescence is the transition point of life from childhood to adulthood.Many changes occur in adolescents, ranging from physical to psychological, including hormonal changes, brain development, social and emotional development, and the search for identity.Adolescents are the most influential generation in establishing national values, which are expected to improve the state's condition1.In addition, adolescence is the point where individuals begin to search for selfidentity and determine how they want to be seen by society.One of the ways that some teenagers might choose to find their own identity is by promiscuity.2Promiscuous behavior can pose serious physical and mental health hazards, such as physical health which includes transmission of sexually transmitted diseases, unwanted pregnancies, and even death in some cases.Unwanted teenage pregnancies can negatively impact the physical and mental health of both the mother and the baby, and often these pregnancies end in abortion3.
Etymologically, the term "abortion" means "miscarriage", "abortion", or "abortion".In the medical world, abortion means abortion, which means releasing the products of conception (fertilization or meeting of the egg with sperm cells).Abortion is quite a strange problem because it involves various aspects of human life, including law, ethics, morals, and religion.Abortions that are not carried out legally and safely pose a risk of physical complications such as bleeding, infection, and damage to the reproductive organs.Abortion can also increase the risk of anxiety and depression in women.Abortion itself is divided into 2 types, namely Abortus Provocatus Therapeuticus/Spontaneus and Abortus Provocatus Criminalis.Abortus Provocatus Therapeuticus is an abortion performed for medical indications, namely to save the mother's life or avoid serious health risks.Abortus Provocatus Criminalis is an act of abortion that is carried out illegally and violates criminal law.
Even though Indonesian law prohibits abortion, there are still many cases of abortions being carried out illegally by people who do not have a valid medical license or permit.Several factors, including low education and knowledge about reproductive health, lack of access to information about contraception and reproductive health, poor economic conditions, and social stigma against pregnancies outside of marriage, can influence the crime of abortion provocatus4.In addition, social norms that require women to maintain family honor and avoid social humiliation can also force them to take such actions.5 The legalization of abortion in the medical world is intended to reduce abortions performed by incompetent persons, such as traditional birth attendants.There are those who categorize abortion as murder.In addition, there is a religious prohibition on abortion because the fetus also has the right to live, so it must be preserved.According to Law Number 36 of 20096 concerning Health, abortion may only be carried out under certain conditions, such as to save the mother's life or endanger the mother's health.Abortion provocatus is carried out without a valid reason and under conditions that are prohibited by law, so it is an act that violates the law.
The crime of abortion provocatus requires strict and fair legal treatment to ensure that this action is not carried out again in society and ensures that the defendant receives a punishment that is in accordance with the actions taken.In dealing with cases of criminal acts of abortion provocatus, judges must consider juridical and normative aspects so that decisions taken can be in accordance with applicable law.Therefore, it is necessary to do an analysis of the judge's decision in the case of the crime of abortion provocatus to find out whether the decision meets the applicable juridical and normative requirements or not.One of them is the case that occurred at the Wonosari District Court in Decision Number 40/Pid.B/2020/PN Wno regarding abortion.The Criminal Code itself does not distinguish between Abortus Provocatus Therapeuticus and Abortus Provocatus Criminalis, both of these are still abortions regardless of the reasons because these two things are acts that can be subject to criminal sanctions.
Apart from that, in 75 of the Health Law which states a prohibition on abortion and strengthened by Article 77 of the Health Law which states that "The government is obliged to protect and prevent women from having abortions as referred to in Article 75 paragraphs (2) and (3) which are not of good quality, unsafe, and irresponsible and contrary to the norms and provisions of laws and regulations".
Then the panel of judges only handed down a sentence of one year and ten months which did not support government programs at all in protecting children's rights, where the defendant had lost the life of a baby (fetus), this clearly violated human rights, namely the right to life regulated in Article 28A of the Law The 19457 Constitution of the Republic of Indonesia and Law Number 39 of 19998 concerning Human Rights to be precise in article 53 that a child has been protected since he was in the womb.Seeing the goal of the theory of punishment, namely the theory of retributive, where the purpose of this theory is punishment is not retribution for crimes committed by someone.So, in my opinion, the verdict passed by the judge against the defendant was very light and unfair with the very heinous act of the defendant who had an abortion.

RESEARCH METHODE
This type of research is normative legal research or library research .The approach used in this research is to use 3 kinds of approach methods, namely the statutory approach, the case approach and the conceptual approach.In addition, this study uses 3 data sources, namely primary data, secondary data, and tertiary data.Data collection techniques and data analysis techniques in this study used literature study with content analysis.
. The definition of "means of evidence" in Article 197 paragraph (1) of the Criminal Procedure Code also includes everything that can be used as evidence, which includes both evidence and evidence.Thus, the use of the term means of proof in Article 197 paragraph (1) of the Criminal Procedure Code, which includes evidence and evidence, shows that evidence has an important position in the evidence system.However, there is no mention of the term evidence in Article 183 of the Criminal Procedure Code regarding the evidentiary system and the absence of provisions in the Criminal Procedure Code for special treatment of evidence, giving rise to the impression that evidence is merely additional evidence to evidence.

b. Non Juridical Analysis
Non-juridical considerations can be seen from the background or reasons for the defendant's actions and the consequences of the defendant's actions.The judge's considerations are based on circumstances that are not regulated by law, but are experienced by the perpetrator of the crime.9This is known as a non-juridical consideration.
In this case the basis for the judge's non-juridical considerations in decision Number 40/Pid.B/2020/PN Wno is:

Discussion
The reasons for the defendant's actions The defendant did this because the defendant and his girlfriend were involved in an argument and the defendant had the intention to abort the fetus in the defendant's womb.At that time the defendant was not bound by a husband and wife (marriage) relationship with his girlfriend, but the defendant had tested positive for being pregnant As a result of the defendant's actions The defendant did this because the defendant and his girlfriend were involved in an argument and the defendant had the intention to abort the fetus in the defendant's womb.At that time the defendant was not bound by a husband and wife (marriage) relationship with his girlfriend, but the defendant had tested positive for being pregnant So it can be concluded based on the results of research on literature studies from related documents, the decision on case number 40/Pid.B/2020/PN Wno which stated that the defendant was legally and convincingly proven according to law to have violated Article 346 of the Criminal Code as well as the things that were revealed in court has fully complied with the elements of Article 346 of the Criminal Code.Therefore, the judge handed down a sentence of 1 (one) year and 10 (ten) months and reduced the detention period.It was felt that the trial procedures in case number 40/Pid.B/2020/PN Wno were in accordance with the provisions of the law, however the sentence handed down by the judge was in accordance with the maximum sentence of Article 346 of the Criminal Code.This means that in order to impose a sentence on the Defendant, it is necessary to first consider the aggravating and mitigating circumstances of the Defendant10.
The panel of judges at the Wonosari District Court, by looking at the facts at trial, stated that the Defendant Arvita Sari Winda Adi Prastowo Binti Suradi was legally and convincingly guilty of committing the crime of "intentionally aborting a womb", after all the elements contained in Article 346 Criminal Code fulfilled.Because the elements in Article 346 of the Criminal Code are fulfilled as charged in the second alternative indictment.
That in the trial the Panel of Judges did not find justification or excuses that could eliminate the unlawful nature of the Defendant so that the Defendant's actions must be held accountable to him11.Therefore, the Defendant is able to take responsibility, the Defendant must be found guilty of the crime charged against the Defendant and sentenced, as stipulated in Article 346 of the Criminal Code with imprisonment for 1 (one) year and 10 (ten) months.The sentence handed down by the Panel of Judges was lighter than the demands of the Public Prosecutor, namely 2 (two) years and 6 (six) months.Based on the 1945 Constitution, this shows that the right to live and maintain life is the same right for all people, especially Indonesian citizens, from birth.No one can buy or take another person's life for any reason.If anyone takes the life of another person without reason, that person must be punished according to the law.In the description of the formulation of Article 28A which regulates the right of a person or child to live.The child referred to here is every individual who is not yet 18 years old, including the fetus that is still in the womb.Therefore, the state is responsible for maintaining and protecting the right to life of every citizen.To do this, law enforcers will use state tools to act in cases of violations of the right to human life.b.According to the Criminal Code Abortion as an act of abortion, along with the provisions contained in the Criminal Code.The following is an explanation of the Articles:

Judgment on
The following is an explanation of the Articles above: 1) Article 346 "A woman who deliberately aborts or kills her womb or orders someone else to do so, is punishable by a maximum imprisonment of four years."When looking at the elements of Article 346 of the Criminal Code, it can be concluded that those who can be subject to punishment according to Article 346 of the Criminal Code are only pregnant women or pregnant women themselves.2) Article 347 a) Any person who with deliberate intent aborts or kills the womb of a woman without her consent, shall be punished by a maximum imprisonment of twelve years.b) If said act results in the death of the said woman, he shall be punished by a maximum imprisonment of fifteen years.3) Article 348 a) Any person who with deliberate intent aborts or kills a woman's womb with her consent, shall be punished by a maximum imprisonment of five years and six months.b) If said act results in the death of the woman, it shall be punished by a maximum imprisonment of seven years.Based on the description of the formulation of the Articles above which regulate abortion, it means that for whatever reasons other than medical reasons one cannot perform or perform an abortion.If we look closely at the provisions of the Criminal Code, it is based on an idea or paradigm that a child who is still in the womb is a legal subject and therefore has the right to receive legal protection.As for those who can be subject to criminal sanctions related to the act of abortion, namely women who abort their own wombs and also those who are involved in the abortion process such as medical personnel (doctors, midwives or pharmacists).

c. According to Law Number 36 of 2009 concerning Health Law
If you understand the medical meaning of abortion or abortion is an abortion or miscarriage.Miscarriage itself means the end of pregnancy, before the fetus can live independently outside the womb with a limit of 20 weeks of gestation and the weight of the Welfare of Mother and Child is a unit that influences each other.A child can grow well, healthy, smart, creative and productive.It is impossible to be born unless it is from a mother whose health and well-being is good and guaranteed.As regulated in Article 9 paragraph (1) regarding the Rights of the Child.As is the case in Article 9 paragraph (1) letter a which states that children have the right to live, grow and develop optimally.In addition, in Article 10 which mentions the obligations of the mother.Article 10 paragraph (1) letters a and b state that: 1) Maintain personal health during pregnancy; 2) Maintaining the survival and growth and development of children since they are still in the womb.
Based on the above formulation, it is clear that abortion provocatus criminalis violates the above provisions.Abortion in this case means reducing the child's life expectancy, and not giving the child the right to live.That what is meant by the element of "Whosoever" in this case is a legal subject who can be held responsible for the actions he has committed legally, especially according to criminal law and there is no reason to forgive and/or justify that can eliminate his punishment.
That at trial a legal subject or a defendant was present, namely Arvita Sari Winda Adi Prastowo Binti Suradi, whose identity had been mentioned before the trial, was submitted to the court because she had been charged with committing a crime and during the trial the defendant confirmed that identity was the identity of the defendant himself.b.Women who intentionally cause the death of their womb or order other people to do so.
That what is meant by women in this case is the pregnant woman herself, namely the Defendant Arvita Sari Winda Adi Prastowo Binti Suradi.In addition, what is meant by intention is the willingness to do or not to do actions that are prohibited or ordered by law.
The Panel of Judges in deciding this case by looking at all the facts at trial stated that the Defendant Arvita Sari Winda Adi Prastowo Binti Suradi was legally and convincingly guilty of committing the crime of "intentionally aborting a womb", after all the elements contained in Article 346 of the Criminal Code are fulfilled.Based on juridical considerations, namely the public prosecutor's indictment, witness statements, defendant statements, evidence, and articles in the criminal law regulations, as well as non-juridical considerations, namely the reasons for the defendant's actions and the consequences of the defendant's actions.Based on these considerations the judge handed down a decision on the defendant Arvita Sari Winda Adi Prastowo Binti Suradi for 1 (one) year 6 (six) months.Whereas the element "a woman who deliberately causes the death of her womb or orders someone else to do so" has been fulfilled in Article 436 of the Criminal Code, then the defendant has been declared legally and convincingly proven to have committed the crime of abortion Case Number 40/Pid.B/2020/PN Wno In terms of positive law in Indonesia a.According to the 1945 Constitution e. Government Regulation Number 61 of 2014 concerning Reproductive Health In addition to the Criminal Code (KUHP)15 and Law Number 36 of 2009 concerning Health which regulate abortion, the Government also issued Government Regulation Number 61 of 2014 concerning Reproductive Health with the aim of ensuring the health of healthy reproductive organs.Abortion is one part of medical action related to the goals of reproductive health.In this Government Regulation on Reproductive Health, the highlight is the legalization of abortion for rape victims.This is regulated in the provisions of Chapter IV concerning indications of medical emergencies and rape as a prohibition on abortion.It has been explained that abortion in this Regulation is permitted on the grounds of medical emergencies and pregnancy due to rape, which has been regulated in Articles 31 to Article 39 of Government Regulation Number 61 of 2014 16concerning Health.Reproduction.Article 31 1) Abortion can only be done based on: a) medical emergency indications; And b) Pregnancy as a result of rape.2) The act of abortion as a result of rape as referred to in paragraph 1) letter b can only be carried out if the gestational age is no longer than 40 (forty) days from the first day of the last menstrual period.Government Regulation Number 61 of 2014 concerning Reproductive Health which explains that in principle a country has the right to prohibit abortion, and these restrictions have been expressly stipulated in Law Number 36 of 2009 concerning Health.Where in the act of abortion in several medical conditions it is the only way that medical personnel can try to save the lives of mothers who experience health problems or serious complications occur in their pregnancies.Therefore, abortion based on Government Regulation Number 61 of 2014 concerning Reproductive Health allows abortion based on medical emergency indications or the result of rape only which is proven in accordance with the provisions in Article 34 and Article 35.

CONCLUSION 1 .
Based on the results of the discussion of the problems above, the authors draw the following conclusions:The basis for the judge's consideration in imposing a crime on the crime of abortion committed by Defendant Arvita Sari Winda Adi Prastowo Binti Suradi at the Wonosari District Court can be seen based on the legal basis used by the judge in imposing a sentence, namely Article 326 of the Criminal Code, whose elements are as follows following: a. Whoever.
2. The legal arrangements for the crime of abortion in this case are very clearly stated in the Criminal Code, Law Number 36 of 2009, the MCH Bill and Government Regulation Number 61 of 2014 concerning Reproductive Health.In addition, the criminal act of abortion has violated the provisions of Article 28A of the 1945 Constitution which states that every person has the right to live and has the right to defend his life and existence.

Table 2 .
Non Juridical Analysis Consideration