Hiding Under the Bed Is Not the Answer

Abortion, Women’s Reproductive Rights and Mexico’s Supreme Court

This week Mexico’s Supreme Court debated the question of whether recent reforms to the constitutions of the states of Baja California and San Luis Potosí were constitutional. Both these constitutions, in common with 17 other states, have included a clause that guarantees the “right to life” from the moment of conception. As I have mentioned on this blog, these reforms have been enacted in response to the legalisation of abortion during the first trimester of gestation in Mexico’s Federal District in 2007 (see here, here and here). In 2008, the Supreme Court upheld the right of Mexico’s federal entities (the 32 states and the Federal District) to legislate on the issue of abortion and rejected a motion for this law to be declared unconstitutional, signalling that the Federal Constitution did not grant the right to life to unborn foetus or embryos.

Given this earlier ruling, prochoice groups had been hopeful that the Court would declare the recent reforms in Baja California and San Luis Potosí unconstitutional, thus paving the way for these same reforms to be challenged in the other states where this amendment had been adopted. This was not to be, however; the Court ruled 7-4 in favour of declaring the reforms unconstitutional, but the motion was dismissed because in votes on questions of constitutionality statute requires the minimum of 8 votes to pass.

What does this decision mean? In the first place, it seems to reiterate the 2008 ruling that Mexico’s federal entities have the faculty to decide on the question of abortion. This is the conclusion that most English reports have emphasised (see for example the Washington Post). However, the implications appear to be more wide-ranging than that. Upholding the idea that life can be legally defined as beginning at conception could also have other consequences; namely in the area of anti-contraceptive use and assisted pregnancy. [1] Some anti-contraceptive devices work by preventing a fertilised egg establishing itself in the womb (like the morning after pill or the coil) for example. IVF treatment usually involves the fertilisation of more eggs than are eventually implanted in the womb; the rest of are usually frozen. Will the constitutional amendments also trigger a revision of what is legal in these cases? Leading Mexican legal scholars think so.[2]

Moreover, the precise wording of the Baja Californian amendment which read: “from the moment an individual is conceived, she/he falls under the protection of the law and is considered born for all legal effects” (“desde el momento en que un individuo es concebido, entra bajo la protección de la ley y se le reputa como nacido para todos los efectos legales correspondientes” [3]) suggests further issues; some apparently trivial, some more serious.

For example, does this recognition of the juridical existence of an embryo/foetus mean that it should be named and issued with identification documents? If the mother needs to travel abroad will she need to acquire a passport for the contents of her womb? More worryingly, the reform seems to give constitutional legitimacy to the already widespread practise in Mexico (see my posts here and here) of prosecuting a women for a suspected induced abortion for murder, rather than for illegally terminating their pregnancy. This allows them to be sentenced for custodial sentences of 20 plus years rather than the 4 or 5 stipulated in the penal codes for abortion. Finally, it appears inevitable that the upholding of the reforms will also mean the criminalising of nearly all women whose pregnancies end in unexplained circumstances, since miscarriages and still-births might be liable to be considered suspected terminations unless it can be proved otherwise. This is concerning as a high number of pregnancy ends in miscarriage in the first trimester of gestation. It is estimated for example that up to half of all fertilized eggs die and are aborted spontaneously, usually before the 6th week of pregnancy. After that, the miscarriage rate is calculated at between 15 and 20%. Moreover 80% of miscarriages occur before 12 weeks of pregnancy, many with no obvious cause [4]. Can Mexico’s already over-stretched and inefficient justice system deal with this number of investigations? The criminalisation of miscarriage and still-birth is also likely to prevent many women seeking medical attention, putting their lives at risk and increasing Mexico’s already high maternal mortality rates (see my post here).

Abortion is a contentious subject in Mexico, as is in most Catholic countries there is strong antiabortion feeling amongst the faithful, encouraged by the Church. In the wake of the Supreme Court ruling, the Archbishop of Mexcali (in Baja California) claimed that the Pope had been in communication with one or more of the Supreme Court judges in attempt to influence their vote. This accusation was denied by the Vatican [5]. The political party currently in control of Mexico’s Presidency, the National Action Party (Partido de Acción Nacional or PAN), is resolutely opposed to abortion; and the party with a majority in Congress –the Institutional Revolutionary Party (Partido de la Revolución Institucional or PRI) – has sponsored many of the states’ constitutional amendments on the subject of the right to life. Only the minority Democratic Revolution Party (Partido de la Revolución Demcrática or PRD) is prochoice, as evidenced by the legislation in the Federal District, one of the very few entities controlled by this party.

The situation then looks grim in the short-term for prochoice activists in Mexico. However, it must be borne in mind that the Supreme Court did in fact produce a majority in favour of striking down the reforms; it just wasn’t a big enough majority. It can only be hoped that at some future date, the composition of the Court will be more favourable to the protection of women’s rights.

[1] http://www.eluniversal.com.mx/editoriales/54864.html

[2] http://www.jornada.unam.mx/2011/09/26/politica/007n2pol

[3] http://eljuegodelacorte.nexos.com.mx/?p=1457

[4] http://en.wikipedia.org/wiki/Miscarriage

[5] http://www.sinembargo.mx/30-09-2011/48652

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Filed under: Feminism, Politics, Women's Right to Choose, , , , , ,

Judge in Mexico Overturns 23-Year Prison Sentence of Mother Accused of “Murdering” her Fetus

This is a post about good news. On Thursday an appeal judge in Mexicali, Baja California released Lesly Karina Díaz Zamora, 21, who had been sentenced to a 23 year prison term in January on the charge of “murder by a relative” (homicidio por razón de parentesco) after suffering a spontaneous miscarriage. Díaz Zamora had already spent two years in remand without bail prior to this. Details can be found about the charges and the campaign in favour of her release in my previous posts here and here. (An additional report in English from the online newspaper MexicoPerspective.com can be also found on their website). After considering the case for appeal the judge ruled that Díaz Zamora had no charges to answer and ordered her to be immediately exonerated and released. It can only be hoped that this young women, who already has a five-year old child, will be able to rebuild her life after such a traumatic ordeal and will not have to go on suffering the prejudices of a society which labelled her a murderer on the most flimsy of evidence.

Unfortunately, many more women are in Díaz Zamora’s situation in Baja California and other states in Mexico. As I have documented, it is a sadly common practise in Mexico to prosecute women for the charge of “murder by relative” if they are suspected of having an abortion. This is because the law does not allow prolonged custodial sentences for abortion, while the charge of murder can be punished with sentences of up to 25 years, as was the case for Díaz Zamora. Freeing these women must be our next priority.

Filed under: Feminism, Human Rights in Mexico, Women's Right to Choose, , , ,

Petition in Favour of the Release of Lesly: A Young Mother Imprisoned For 23 Years For Murder After Suffering a Miscarriage

As I reported last week, in Baja California, there are at least 14 women currently in prison on remand charged with murder after their pregnancies ended before gestation was complete. This number includes at least one woman who insists that she suffered a miscarriage. This woman, Lesly Karina Díaz Zamora, who is now 21, is already the mother of a five year old child (you can see a video –in Spanish– about the case here). Lesly was arrested at the hospital she had gone to looking for medical attention in the summer of 2008, and was later remanded in custody without bail. She was finally sentenced on 20 January to a 23 year custodial sentence after already having passed more than two years already in detention. She is currently appealing this sentence on the grounds that the prosecution were unable to prove intentionality and the investigation against her did not follow due process. The other accused face similar sentences and have also all been refused bail.

The maximum tariff allowed by Baja Californian law for the crime of abortion is 4 years. In common with the other women in prison, Lesly was accused of murder in accordance with the amendment of the state constitution that defines life as beginning at conception.

This week women’s right groups, led by the Red Iberoamericana Pro Derechos Humanos (Ibero American Network for Human Rights); the Federación de Mujeres Universitarias (Federation of University Women); the Coordinación Nacional de Mujeres por un Milenio Feminista de Baja California (National Coordination for a Feminist Millennium in Baja California); and the Comisión Ciudadana de Derechos Humanos del Noroeste (Citizens’ Committee for Human Rights in the North-West) have undertaken a number of events to campaign for the release of Lesly.

At the moment they are circulating a petition to be presented to the governor of Baja California, José Guadaulpe Osuna Millán; the state’s Procurador General de Justicia (Chief Prosecuting Officer), Rommel Moreno Manjarrez; the Human Rights Commissioner for the State of Baja California, Heriberto García García; and the Prosecuting Officer for Mexicali, María Elena Andrade Ramírez to demand that Lesly be released on the grounds that her human rights were not respected during the investigation or her sentencing. The following is a translation of the petition:

 

We, the undersigned citizens and organizations wish to express our profound indignation at the persecution and criminalisation of Lesly, a 21 year-old young woman from Mexicali, who has been sentenced to 23 years in prison.

Punished for the crime of homicidio agravada por parentesco (aggravated murder by reason of relationship), Lesly’s case is yet one more of series in which women’s fundamental rights and liberties have been violated leading to their unjustified imprisonment. A recent example of this occurring is in the state of Guanajuato.

We are directing this petition to you as members of bodies involved in this injustice, since you should play a fundamental part in assuring that these offices respect Lesly’s right to equality and to freedom from discrimination.

As a result of the above, we make an urgent appeal for:

The Human Rights Commissioner for the State of Baja California, Heriberto García García to make the relevant recommendation for an inquiry into the human rights violations to which Lesly has been subjected.

The Prosecuting Officer for Mexicali, María Elena Andrade Ramírez to revise and investigate the sentence passed against Lesly in Mexicali by the presiding judge of its 4th District, taking into account the testimonies of abuse presented by lawyers acting in her defence.

The Governor of the state of Baja California, José Guadalupe Osuna Millán, to do all that is in his power to order Lesly’s immediate release.

We wish to ensure that the Mexican state respects the secular nature and human rights enshrined in our Constitution; as well as the international treaties Mexico has signed concerning human rights.

Immediate freedom for Lesly!

Yours Sincerely,

 

You can add your signature to the petition here.

Filed under: Human Rights in Mexico, Women's Right to Choose, , , , , ,

MEXICO CONTINUES TO LOCK UP WOMEN FOR ABORTION AND MISCARRIAGE: 14 CASES IN BAJA CALIFORNIA ALONE

The recent law amendment submitted by state representative Bobby Franklin in Georgia which seeks to introduce a law creating “prenatal murder” which proposes to criminalise any “human involvement” in a miscarriage or abortion, and make it carry a penalty of life in prison or death has caused much comment in the US and UK. Feminists in both countries (and I imagine further afield as well) have united in their condemnation of such legislation (see here and here). Their rage is justified and necessary in my opinion. However, reading their twits, comments and blogs from my computer in Mexico I feel like entering I am entering another world. I hope I can argue that legislation of the kind proposed in Franklin is unlikely to make it to the statute books, not least because it is ill-thought out and unenforceable. In Mexico however, this type of legislation is already in existence. As I pointed out in my first blog post back in September, abortion is a hot topic here due to the reforms that have been undertaken in Mexico City, which introduced the legalisation of abortion during the first twelve weeks of gestation in 2007. Shortly after the measure became law, the President’s Office, the PGR and most depressingly of all, the National Commission for Human Rights (Comisión Nacional de los Derechos Humanos), initiated proceedings in the Supreme Court of Justice (Suprema Corte de Justicia de la Nación, or SCJN) with the hope of having it declared unconstitutional on the grounds that (amongst other things) it was a violation of the unborn foetus’ life. Last year, the SCJN presented its verdict, rejecting all the petitions. It affirmed that life was not defined as starting at conception in the Federal Constitution and upheld the constitutional right of the DF government to legislate on such matters as abortion.

The most obvious consequence of the controversy has been the move by conservative groups in the rest of Mexico’s states to push for the reform of their individual constitutions to ensure that the articles which refer to the inhabitants right to life and/or the duty of the state to ensure that this right is protected, explicitly define life as beginning at conception. The objective is to ensure that laws such as that passed in DF are clearly unconstitutional in their states. So far, 18 of Mexico’s federal entities (comprising of 31 states and DF) have approved such reforms, including my home state of Tamaulipas (in December 2010). At the federal level, in 2009 the then governor of Veracruz state, Fidel Herrera submitted a proposed amendment to the constitution in-line with those already enacted in the states (“El derecho a la vida será garantizado por el Estado desde el momento de la concepción. La ley establecerá los casos de excepción a la protección de la vida del no nacido.” “The State will guarantee the right to life from the moment of conception. The circumstances in which the unborn [foetus] will not enjoy this right shall be defined by a separate law.”) This giving of rights to an unborn foetus means, just as in Frankin’s proposed reform, that an abortion is classed as murder; specifically, what the penal code determines as “murder by a relative” (homicidio por razón de parentesco). Sadly, this reform seems to confirm the already widespread practise in Mexico of prosecuting women suspected o abortion for murder, as this allows them to be given much longer custodial sentences.

A positive outcome of the reformist zeal against women who wish to end their pregnancies, has been the publicity awarded to the cases where women have already been prosecuted or are on remand for this act. As I reported in my aforementioned blog post in September, in Guanajuato six women were found to be serving prison sentences after having been accused of procuring an abortion. The women had not been sentenced for this “crime”, but rather for “murder by a relative.” Their sentences had been received long before the constitutional reforms and appear to show, as I mentioned previously, that it was already common practise to punish women for ending their pregnancy in this way. They were sentenced to up to of 20 years imprisonment. Another 30 women were facing similar charges. More distressingly still, it also emerged that four of these women had not actually had an abortion, but rather had suffered spontaneous miscarriages, which due to family circumstances, poverty and/or lack of education, they had tried to conceal. Once their condition had forced them to seek medical attention, one of the people treating them (doctor, nurse or social worker) had then made the accusation with the relevant authorities [see here and here]. The women were subsequently unable to neither defend themselves personally against such charges nor pay someone competent to do it for them. Some of the women involved have been in prison for eight years [see here and here]. All of them came from the most deprived regions of the state. As a result of the publicity, relentless campaigning by prochoice groups in Guanajuato and the help of lawyers from a Mexico City law school (Centro de Investigación y Docencia Económicas or CIDE), the State Congress of Guanajuato passed a measure which reduces the sentence facing these women and should result in their immediate release. However, this does not mean that the women were declared innocent, nor has the law been modified to prevent prosecutions of this nature occurring in the future.

Unfortunately, in other states numerous women are still in jail for voluntarily and involuntarily ending their pregnancies. This is the case of Baja California, another state where, like Guanajuato, the conservative Partido de Acción Nacional (National Action Party or PAN) is a considerable political force. Here there are at least 14 women currently in prison on remand charged with “murder by relative”; all of whose pregnancies ended before gestation was complete. I put it this way because, just as in the case of Guanajuato, this number includes at least one woman who insists that she suffered a miscarriage. This woman, who was still at school when the alleged event took place, was finally sentenced on 20 January to a 23 year custodial sentence after having passed two years already in detention without bail. She is currently appealing this sentence on the grounds that the prosecution were unable to prove intentionality. The other accused face similar sentences and have also all been refused bail.

In response to this, various feminist organizations in Baja California are campaigning for the release of all these women. Leading the campaign is Marixtel Calderón Vargas, member of the Red Iberoamericana Pro Derechos Humanos (Ibero American Network for Human Rights) with the help of the Federación de Mujeres Universitarias (Federation of University Women), Coordinación Nacional de Mujeres por un Milenio Feminista de Baja California (National Coordination for a Feminist Millennium in Baja California), and the Comisión Ciudadana de Derechos Humanos del Noroeste (Citizens’ Committee for Human Rights in the North-West). You can find their blog page here. Obviously the page is in Spanish, however there is a window (in English) on the right hand side about halfway down which invites to you to sign the declaration in favour of the release of the women prisoners that these groups are going to present on Tuesday to the Governor of Baja California and the State Congress. Please sign and help these women.

Filed under: Feminism, Human Rights in Mexico, Women's Right to Choose, , , , , , , , ,

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