Using litigation to defend women prosecuted for abortion in Mexico: challenging state laws and the implications of recent court judgments

Abstract

While women in Mexico City can access free, safe and legal abortion during the first trimester, women in other Mexican states face many barriers. To complicate matters, between 2008 and 2009, 16 state constitutions were amended to protect life from conception. While these reforms do not annul existing legal abortion indications, they have created additional obstacles for women. Health providers increasingly report women who seek life-saving care for complications such as haemorrhage to the police, and some cases eventually end up in court. The Grupo de Información en Reproducción Elegida (GIRE) has successfully litigated such cases in state courts, with positive outcomes. However, state courts have mainly focused on procedural issues. The Mexican Supreme Court ruling supporting Mexico City’s law has had a positive effect, but a stronger stance is needed. This paper discusses the constitutional framework and jurisprudence regarding abortion in Mexico, and the recent Costa Rica decision of the Inter-American Court of Human Rights. We assert that Mexican states must guarantee women’s access to abortion on the legal grounds established in law. We continue to support litigation at the state level to oblige courts to exonerate women prosecuted for illegal abortion. Advocacy should, of course, also address the legislative and executive branches, while working simultaneously to set legal precedents on abortion.

Résumé

Alors qu’à Mexico, les femmes ont accès à un avortement gratuit, sûr et légal pendant le premier trimestre, dans d’autres États mexicains, elles se heurtent à de nombreux obstacles. Pour compliquer les choses, de 2008 à 2009, 16 constitutions d’États ont été amendées pour protéger la vie dès la conception. Si ces réformes n’annulent pas les motifs juridiques autorisant l’avortement, elles ont créé des difficultés supplémentaires pour les femmes. Les prestataires de santé sont de plus en plus nombreux à signaler à la police les femmes qui demandent des soins vitaux pour des complications telles qu’une hémorragie et certains cas finissent en justice. Le Grupo de Información en Reproducción Elegida (GIRE) a défendu ces affaires devant les tribunaux des États, avec des issues positives. L’arrêt de la Cour suprême mexicaine soutenant la loi de Mexico a eu un effet positif, mais une position plus ferme est requise. L’article examine le cadre constitutionnel et la jurisprudence concernant l’avortement au Mexique et les conséquences de la décision de la Cour interaméricaine des droits de l’homme sur l’accès des femmes à la fécondation in vitro au Costa Rica. Nous avançons que les États mexicains doivent garantir l’accès des femmes à l’avortement pour les motifs prévus par la loi. Nous continuons à soutenir les litiges au niveau des États pour obliger les tribunaux à relaxer les femmes poursuivies pour avortement illégal. Le plaidoyer devrait bien sûr s’adresser également aux secteurs législatifs et exécutifs, tout en s’efforçant de créer des précédents juridiques sur l’avortement.

Resumen

Aunque las mujeres en el Distrito Federal de México tienen acceso a servicios gratuitos de aborto seguro y legal durante el primer trimestre, en otros estados mexicanos las mujeres enfrentan muchas barreras. Para complicar la situación, entre los años 2008 y 2009, 16 constituciones estatales fueron enmendadas para proteger la vida desde la concepción. Aunque estas reformas no anulan las causales existentes para el aborto legal, han creado otros obstáculos para las mujeres. Cada vez más los profesionales de la salud denuncian a la policía las mujeres que buscan tratamiento por complicaciones como hemorragia para salvar su vida, y en algunos casos van a parar a la corte. El Grupo de Información en Reproducción Elegida (GIRE) ha tenido éxito litigando tales casos en los tribunales estatales, con resultados positivos. Sin embargo, los tribunales estatales se han enfocado principalmente en asuntos procesales. El fallo de la Suprema Corte de Justicia de México a favor de la ley del Distrito Federal ha tenido un efecto positivo, pero se necesita una postura más fuerte. En este artículo se discute el marco constitucional y la jurisprudencia con relación al aborto en México, así como las implicaciones de la decisión de la Corte Interamericana de Derechos Humanos respecto al acceso a la fertilización in vitro en Costa Rica. Argumentamos que los estados mexicanos deben garantizar el acceso de las mujeres a los servicios de aborto según las causales establecidas en la ley. Continuamos apoyando el litigio a nivel estatal para obligar a las cortes a exonerar a las mujeres procesadas por aborto ilegal. Por supuesto que las actividades de promoción y defensa también deben dirigirse a los poderes legislativo y ejecutivo, a la vez que procuran establecer precedentes jurídicos en cuanto al aborto.

Keywords:

• abortion
• criminal law
• law and policy
• jurisprudence
• judicial roles
• Mexico

In April 2007, Mexico City took the historic and unprecedented step of decriminalizing abortion during the first trimester of pregnancy, becoming the only Mexican state that does not punish women for this procedure. From April 2007 to August 2014, the Mexico City Ministry of Health has provided women with over 128,000 safe abortions, free of charge – including women coming from other Mexican states or even other countries. However, after the ruling in 2008 by the Mexican Supreme Court upholding the constitutionality of the Mexico City law, 16 of the 32 Mexican states amended their constitutions so as to protect life from conception.^*

The effect of these amendments was to create an abysmal divide regarding access to safe abortion and women’s exercise of their reproductive rights between Mexican states, and place women’s right to reproductive autonomy at risk throughout the country. They have also led to an increased risk that women would be prosecuted for illegal abortion, even when a desired pregnancy has miscarried or the baby is stillborn.

The Grupo de Información en Reproducción Elegida (GIRE), a Mexican non-governmental organization founded in 1992 to promote and defend women’s reproductive rights, is working to counteract the effects of these reforms via mutually reinforcing strategies. The organization educates government decision-makers from the legislative branch and works with the executive branch to implement public policy that directly impacts women’s lives. At the same time, GIRE litigates cases of violations of women’s reproductive rights in the courts to push for change and create legal precedents. Litigation also helps to demonstrate patterns of violations that underpin GIRE’s advocacy on public policies.^*

This article starts by presenting the case history of a woman prosecuted for illegal abortion, whose case was taken up by GIRE, as an example of how the law is being used against women in Mexico today. It then discusses the current context of abortion in Mexico and the barriers to women’s abortion rights created by the state amendments to protect life from conception, such as health care providers’ violation of patient confidentiality. The article will also outline a strategy to engage state courts in protecting women’s reproductive rights, based on new precedents at the national and regional level.

Hilda’s story

In July 2009, Hilda, an 18-year-old adolescent, was accused of illegal abortion^† after seeking care for haemorrhage in a public hospital in San Luis Potosí, a Mexican state located in the conservative central region, whose constitution protects life from conception. Hilda was reported to the police by a hospital social worker. Hilda has scarce resources and carries out many domestic chores, which often require considerable physical force, such as carrying heavy buckets of water on a yoke.

After “confessing” in exchange for life-saving treatment, under a doctor’s coercion, that she had taken pills to induce an abortion, Hilda was taken to the police station, without even being allowed to change out of the hospital gown. She was released the next day for lack of evidence. Nevertheless, the case against her remained open, unbeknownst to her. Three years later, a judge issued an arrest warrant and she was taken to the state penitentiary, where she was charged with the alleged crime of abortion. Hilda’s family paid bail of $3,000 pesos (US$ 240), a burdensome amount for a Mexican family with scarce means. From then on, she had to travel from her small village to the capital city to sign in once a month, at her own expense. GIRE found out about the case through the media and offered her legal defence free of charge, which she accepted.

Hilda was judged horribly by the press. Her case appeared in various local newspapers and even on television. When she was released from prison, located in the centre of town, she saw her name in the headlines of the local newspaper in large, red letters, exclaiming: “Hilda murdered her son”. Due to the media attention, Hilda was pointed at and stigmatized by her neighbours and community. Journalists from the newspaper that published her photograph marched across her village shouting loudly that Hilda was a murderer. She no longer wanted to leave the house.

Despite the lack of evidence against her, on 5 April 2013, Hilda was sentenced by a judge in Ciudad Valles, San Luis Potosí, to one year in prison and a fine of $1,039 pesos (US$ 85). The judge argued that she was responsible for committing an abortion based on her “confession” and a blood test that supposedly confirmed she had taken pills.^** In view of her rejection of the guilty ruling, GIRE helped Hilda appeal the sentence before the Supreme Court of San Luis Potosí.^††

GIRE’s arguments in Hilda’s defence included the human rights violations she faced during the penal process and the first court hearing. The organization argued that the mistreatment she experienced at the hands of the hospital staff to obtain her “confession” constituted cruel and degrading treatment (i.e. torture), that patient confidentiality had been violated by health professionals, she was threatened by police, and her right to equality and non-discrimination had also been violated (prejudice and gender stereotyping by medical personnel and the judge who sentenced her), among others. GIRE argued that Hilda’s alleged act could not be proven, as there was insufficient evidence that Hilda knew she was pregnant. According to both her own and her mother’s testimony, Hilda had not known she was pregnant.

In addition, GIRE argued that Hilda’s “confession”, in which it was said she admitted to having taken pills, was made under pressure from the doctor, and should not be considered valid. It was not supported by scientific evidence that she had ingested any pills, nor that this was the direct cause of her vaginal bleeding, much less the cause of death of the fetus. Finally, GIRE argued that Hilda’s confession was obtained in violation of her fundamental right not to incriminate herself.¹

The Supreme Court of San Luis Potosí ruled in favour of Hilda on 23 August 2013, based on due process arguments. As argued by the defence, the Court considered that neither Hilda’s legal responsibility nor the cause of the abortion had been proven during the criminal process. The other substantive arguments of the defence (violation of the right to equality and non-discrimination, inhumane treatment, torture and breach of medical confidentiality) were rejected by the Court. The Court did not accept that Hilda had been forced to incriminate herself, or that medical confidentiality had been violated, because public servants are required to inform the police if they suspect the existence of a crime. The breach of the right of equality was not considered because the Court declared itself incompetent to determine if the crime of abortion was discriminatory against Hilda, based on gender stereotypes.

The Supreme Court of San Luis Potosí’s ruling was an important victory since it declared Hilda innocent and erased her penal record. Although the Court did not study the substantive arguments of human rights violations presented by GIRE, the Court answered every single defence argument in the appeal, which was unusual for the judiciary. It was indeed a significant achievement to have a state court ruling in favour of a woman prosecuted for abortion, especially in a state whose constitution protects life from conception. The judge’s declaration of Hilda’s innocence was the most meaningful triumph, considering how she had been stigmatized by the press and her community. GIRE defended and succeeded in obtaining similar exonerations for four other women in similar situations in 2013.^*

The regulation of abortion in Mexico

In Mexico, abortion is generally illegal, although limited grounds are permitted and regulated at the state level. However, there is no federal law which establishes homogeneous abortion regulations across the country. The varying abortion laws at the state level generate a context of legal discrimination in which a woman’s right to terminate a pregnancy depends on her state of residence and her socioeconomic position. A 2010 study has documented that the poorest, least educated and/or indigenous women are nine times more likely to undergo an unsafe abortion in Mexico than women with greater economic possibilities, more education or who are not from an indigenous group. In addition, women who live in the country’s poorest states are at higher risk of having an unsafe abortion. The same states also have a higher proportion of sexually active women who do not use or know about contraceptive methods.²

It is only in Mexico City that abortion at a woman’s request is permitted during the first trimester of pregnancy. Moreover, the only legal ground for abortion that exists in all 32 Mexican states is when the pregnancy is a result of rape. There are six other legal indications in some states: termination resulting from an accidental miscarriage (30 states), when the woman’s life is at risk (25 states), fetal abnormality (14 states), serious risk to the woman’s health (13 states), artificial insemination without the woman’s consent (11 states), due to financial hardship (for women with three or more children) in one state (Yucatán), and at the woman’s request during the first 12 weeks of pregnancy in one state (Mexico City).^†

Nevertheless, women’s actual access to abortion on these legal grounds (with the exception of Mexico City) is precarious or nonexistent, representing a major gap between the law and the effective exercise of this right. Public health data indicate very little implementation; only 39 legal abortions were recorded across Mexico for the period 2007–2012, based on governmental data requested by GIRE.^* Many women do not know they have the right to a legal abortion under certain legal grounds and thus do not request it, and health care providers are reticent to perform legal abortions.³ The reasons for this reticence include, but are not limited to: health providers not being aware of the law; absence of political will to comply with the law; fear of reprisals from other staff or supervisors; and because health providers are undeclared conscientious objectors.⁴ The result is that even the limited legal grounds for abortion in each Mexican state are not applied or enforced.

The exception is Mexico City, where elective abortion during the first trimester was decriminalized in April 2007.^† From April 2007 to August 2014, the Mexico City Ministry of Health has provided over 128,000 safe abortions, free of charge, to women from Mexico City (73%), the neighbouring state of Mexico (23.8%) and other Mexican states and countries (3.2%). Currently, 71% of abortions⁵ are medical abortions, and approximately 80% of women take up post-abortion contraception.⁶

Protection of life from the moment of conception

The 16 Mexican states that amended their constitutions between 2008 and 2009 to protect life “from the moment of conception” were part of a national backlash to prevent the expansion of legal grounds for abortion, ensure that decriminalization of abortion did not occur outside of Mexico City and limit women’s reproductive rights in Mexico. The language of these 16 law reforms are not identical, however. Some of them protect life from conception absolutely by stating that a fetus is legally equivalent to a living person, while others mention the protection of life from conception but specifically uphold the existing legal abortion indications.

Despite the fact that these amendments do not annul the grounds for abortion that are currently legal in each of these states, and that their interpretation must be compatible with women’s rights, they have had serious negative consequences for women’s lives and liberty, and the criminalization of women, as demonstrated in the case of Hilda above. They have created an abysmal divide regarding abortion access between Mexican states and placed women’s right to reproductive autonomy at risk across the country. One of the most important changes is that women are now at increased risk of prosecution for illegal abortion, even when they have a desired pregnancy and have a miscarriage or a stillbirth. The law reforms have also generated confusion and legal uncertainty both among women and among law enforcement and health personnel, as to whether or not abortion continues to be allowed.

The consequences for women

One of the most tangible effects of the protection of life from the moment of conception is the rampant prosecution of women for illegal abortion. Most women charged with illegal abortion are reported to the police by public health personnel, in what would appear to be a clear violation of patient confidentiality. However, medical staff in Mexico have a legal obligation to report potential crimes, similar to the obligation to report domestic violence in many other countries (55 of 115 countries analyzed in one study).⁷ The problem in Mexico is that there is no legal clarity as to whether health personnel should prioritize their responsibility to maintain patient confidentiality or their duty to report potentially illegal acts. In Mexico, they are choosing the latter, with great detriment for women. The public health personnel responsible for reporting women for alleged illegal abortion to the police have included physicians, nurses, and social workers at state and federal public hospitals. In one case, the director of a federal institution reported a woman.

Secondly, women are being charged with and sentenced for illegal abortion in states that “protect life” from conception (e.g. Baja California and San Luis Potosí) as well as states that do not have this provision (e.g. State of Mexico and Hidalgo). One theory as to why this is occurring is that the general public mistakenly believe that abortion on all grounds has been prohibited across the country, even though this is not the case, due to the extensive discussion of the reforms at the national level.

To further document the increased persecution of women for illegal abortion, raise awareness of this phenomenon and defend individual cases of women, GIRE developed a strategic litigation strategy starting in June 2011. From June 2011 to March 2014, GIRE registered 44 cases of women accused of illegal abortion nationally and was able to fully document ten of them. GIRE identified these cases through press clippings and information from allied networks and individuals, and in a few cases, the woman herself or family members have contacted the organization directly. From documentation of these cases, which involves reviewing judicial files and speaking with the victims, GIRE has identified worrying patterns and trends. This analysis is based on direct contact by GIRE with a small group of victims. While GIRE in no way claims that these are representative of all cases of women charged with/sentenced for illegal abortion in Mexico, the similarities among the cases lead to the belief that the general pattern is the same.

All women sought emergency public health services after suffering a severe haemorrhage due to miscarriage.^* The women live in both urban and rural areas. They are all poor and have little education or access to resources, financial or otherwise. All of them report being put under pressure by doctors and/or police to confess to having taken medication to induce abortion; for some, this is demanded as a condition for receiving medical treatment while for others it happened while they were still under the effects of anaesthesia. The women were physically and verbally abused by health care staff and police, constituting cruel and inhumane treatment. None of the women, including even a minor, were allowed communication with family members during the time they remained at the hospital (under police guard) or while at the police station. They were not informed of the charges against them at arrest nor were they told that they had the right to remain silent or to have legal representation, constituting serious violations of due process. Hospital officials required women to assume the cost and burden of burying the fetuses, emphasizing that the fetus was a human being and the gravity of the woman’s “crime”.

The case of Rebeca^† exemplifies all these issues. Rebeca had been diagnosed with a high-risk pregnancy and had been given a bracelet to wear to signal that she should receive priority care in case of an emergency. When she indeed sought care at the public hospital because she was bleeding after a traffic accident, she was immediately accused of having provoked an illegal abortion. Fourteen weeks pregnant and suffering from gestational diabetes and high blood pressure, she was sent to jail where she remained for three weeks until GIRE learned of her case, paid her bail, and took up her defence. Fortunately, as a result of GIRE’s actions, she was declared innocent by a state judge in Hidalgo following a federal district court-ordered appeal.^**

Mexican courts on the issue of abortion and promising new developments

Recently, the judicial branch of government has been a very relevant actor for groups that defend reproductive rights in Mexico. Efforts should be invested not only in the executive and legislative branches, but also with the judicial branch – and not only higher or constitutional courts – because lower courts or judges can also be agents of change to transform and advance women’s reproductive rights. Cases related to abortion have been presented to the Mexican Supreme Court of Justice and discussed on three occasions, but state courts have not engaged in this discussion. To challenge state-level laws, direct engagement at the state judicial level is necessary. Presenting specific cases in local courts in conservative states can complement and strengthen all other types of strategies.

State and district courts and judges should be able to turn to the Mexican Supreme Court of Justice for guidance on abortion-related rulings and precedents. However, similar to the state Supreme Court of San Luis Potosí, the Mexican Supreme Court of Justice has been ambiguous in its judgments on abortion in the three cases of abortion-related issues it has reviewed (2002, 2008, 2011).^* Very politically, the Court has ruled that the protection of life is not an absolute right established in the Constitution but that life is a “constitutional value”. At the same time, the Court did recognize women’s human rights related to the termination of pregnancy, including reproductive freedom, and women’s right to equality, non-discrimination and health.

The Mexican Supreme Court has not provided a definite answer as to how prenatal life should be protected by the State, although it has recognized women’s rights when analysing the decriminalization of abortion in the first 12 weeks. In 2002, in upholding the constitutionality of abortion on grounds of fetal malformation, the Supreme Court concluded that although prenatal life was protected under Mexican law, women should not be criminalized for undergoing abortions under the legal indications for abortion.⁸ A relevant consideration of the Mexican Supreme Court’s next ruling on abortion in 2008, when it upheld the constitutionality of elective abortion in the first 12 weeks of pregnancy in Mexico City, was that the law adopted by Mexico City’s legislature in the Criminal Code “serves as an ideal legislative measure to safeguard women’s rights, since the decriminalization of the termination of pregnancy respects women’s reproductive freedom, their physical and mental health and even, their right to life”.⁹ Through interpretation of both rulings, the Court acknowledged the right to life as a constitutional value as well as the human rights of women involved in the defence of reproductive freedom.

However, the Court has not given a clear answer on whether the amendments on protection of life from conception in the 16 state constitutions violate women’s human rights, especially women’s reproductive rights. All constitutional challenges involved in addressing this question have been dismissed by the Court, due to a lack of consensus among the Justices.^10–14 In September 2011, the Mexican Supreme Court of Justice dismissed the unconstitutionality claims brought against the states of Baja California and San Luis Potosí because a qualified majority (8 of 11 Justices) was not reached.¹⁵ In other cases presented by municipalities in Oaxaca, Querétaro and Guanajuato, the Court ruled that the protection of life amendments did not impinge upon the legal competencies of municipalities or states. Therefore, all the state-level constitutional amendments to protect life from the moment of conception remain standing.

Even though the Court dismissed the unconstitutionality claims, however, there was a majority of seven Justices who did consider these amendments unconstitutional. They gave the following reasons: 1) they offer absolute protection to a life still in gestation; 2) they restrict women’s human rights, especially reproductive rights; and 3) state legislatures cannot pass laws that contradict the federal Constitution. GIRE’s legal interpretation¹⁶ is in line with the arguments of the majority of the Justices, that the amendments are contrary to the Mexican Constitution and may endanger women’s human rights when interpreted in a restrictive manner.

Since this 2008 decision, significant human rights reforms have come into effect under the federal Mexican Constitution, redefining the application and interpretation of human rights law, and taking account of rights outlined in international human rights treaties to which Mexico is a signatory and to which all Mexicans are entitled; these became effective in June 2011.¹⁷ These reforms aimed to: 1) increase the human rights content previously recognized; 2) ensure new human rights would receive constitutional protection and 3) establish the principles, characteristics and obligations that derive from these human rights. As such, all public authorities, and governmental branches at all levels are obligated to protect, respect, promote and guarantee human rights. More specifically, judicial authorities should not only apply constitutional texts and text from international human rights treaties, but also apply the law in such a way as to privilege those most favourable to individuals (pro personae principle) and make judgments in accordance with the Constitution and those treaties. This reform should substantially influence judicial decision-making in regard to abortion-related cases.

Artavia Murillo et al. v. Costa Rica

Another valuable judgment since 2008 came from a ruling of the Inter-American Court of Human Rights at the end of 2012, on what the protection of life entails, clarifying debates on the scope of this right via the case of Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica.¹⁸ The case addressed whether human rights had been violated in relation to nine Costa Rican couples whose rights to privacy and to form a family were affected in 2000, as the result of a ruling by the Constitutional Chamber of the Costa Rican Supreme Court of Justice, which prohibited the practice of in vitro fertilization there. The Constitutional Chamber based this prohibition on the violation of the right to life of embryos created for the purposes of fertilization.

The case was first presented to the Inter-American Commission on Human Rights in January 2001,¹⁹ which after receiving and analyzing submissions from the petitioners as well as the State of Costa Rica, admitted the case for formal review via Report No. 25/04 ²⁰ in March 2002. Eight years later, on 14 July 2010, the Commission approved a Report on Merits in which it considered that the absolute prohibition of in vitro fertilization constituted arbitrary interference in the right to a private life and the right to found a family.²¹ Finally, after having granted the Costa Rican State three extensions to comply with its recommendations, the Commission submitted the case to the Inter-American Court of Human Rights in 2011.²²

The Inter-American Court ruled on the case in November 2012, setting a judicial precedent of transcendental relevance. It answered, among other issues, three fundamental questions: what does conception mean; who is entitled to the right to life; and how should prenatal life be protected according to international human rights standards? The Court’s analysis is based on Article 4.1 of the American Convention on Human Rights, which establishes that States should protect life, in general, from the moment of conception. The Court decided that conception should be understood as implantation (when a fertilized egg implants in the uterine wall). The Court also signalled that the fetus cannot be considered a person and that the protection of prenatal life should be gradual and incremental, and is achieved only through women’s exercise of their rights.²³ Although the Court’s ruling is binding for the Costa Rican State, there is not published information on whether this decision is being fully implemented and in vitro fertilization services are offered.

The interpretation of this ruling is critically important for countries like Mexico, where there is a constitutional recognition of life from the moment of conception, as it can help to define the meaning and reach of these amendments, thus effecting their implementation and impact on women’s lives. Based on a comprehensive analysis of Mexico’s constitutional framework and jurisprudence regarding abortion and the protection of prenatal life — together with the Inter-American Court’s ruling in the Artavia case, GIRE has concluded that Mexican states with constitutional amendments that protect life from the moment of conception must also guarantee women’s access to abortion in line with the legal indications for abortion established in state penal codes. Doing this would close the divide between Mexican states and clarify the legal exercise of women’s reproductive rights.

Conclusions

In the context of state constitutional amendments that protect life from the moment of conception, GIRE’s documentation and litigation of cases serve as a means to question laws that criminalize abortion and hinder or violate reproductive rights in general. They also help to raise awareness among the authorities and the general public of the human rights violations faced by living and breathing women with few economic or informational resources, perpetrated by public officials who disregard their duties and obligations. GIRE has successfully litigated several cases for women criminalized for abortion at the state level, such as Hilda’s, which are important for achieving change at the state level by involving local judiciaries, as well as in a national and international framework.

While case litigation takes time, a favourable ruling can not only change one woman’s life by saving her from prison, but also set precedents that can help to change other women’s realities. Litigation should also continue before the highest court in the country, the Mexican Supreme Court of Justice, in order to push for an even stronger and straightforward ruling regarding abortion. The precedents set by this Court to date have greatly helped to advance women’s reproductive rights in Mexico but more could be done, in coordination with other advocacy strategies.

Local legislatures in Mexico have continued to present bills to protect life from conception, with the intent of criminalizing women for illegal abortions. Local courts should speak up about the negative effects of these bills, since they are the ones with an increasing caseload of women like Hilda and Rebeca. Human rights arguments must start being used in the local courts and hopefully by them too, such as the Supreme Court in San Luis Potosí. One possible future scenario with litigation is that local courts and the Supreme Court will rule in favour of women’s human rights, particularly reproductive rights, based on the precedents set by the Supreme Court’s first two rulings on abortion, along with the Artavia Murillo case, and the human rights obligations established in the 2011 Constitutional reform. Until this occurs, it is important to continue litigating at the state level as cases arise, so that these courts are called upon to rule on both legal and illegal abortion in line with women’s human rights.

Acknowledgements

GIRE acknowledges the support of multiple donors for the development of the report “Omission and Indifference: Reproductive Rights in Mexico”, from which much of the data and statistics included here were drawn, and the combined efforts of its staff to prepare this analysis in 2013.

Notes

* Baja California, Chiapas, Colima, Durango, Guanajuato, Jalisco, Morelos, Nayarit, Oaxaca, Puebla, Querétaro, Quintana Roo, San Luis Potosí, Sonora, Tamaulipas and Yucatán.

* GIRE is one of the Mexican organizations employing litigation strategies for cases of women criminalized for abortion but others, such as Asistencia Legal por los Derechos Humanos (Así Legal) and Centro Las Libres de Información en Salud Sexual Región Centro (Las Libres), carry out similar strategies as well.

† Article 128 of the San Luis Potosí Penal Code states: “Anyone who causes the death of the product of conception during any moment of pregnancy commits the crime of abortion. The punishment for this crime will be applied to the mother who voluntarily undergoes an abortion, or who consents that another person induce an abortion with a sentence of 1–3 years in prison and a fine of 20–60 days of minimum wage.”

** A Gynuity Health Projects fact sheet states that the active ingredient in the misoprostol pills that most women take to self-induce abortion cannot be detected by commonly available laboratory tests. See: http://gynuity.org/resources/info/faq-on-misoprostol-detection-in-blood/.

†† Each Mexican state has a supreme court, the highest court at state level.

* Their stories can be viewed in GIRE’s documentary “Viva México” at: http://youtu.be/ThK8FzF58iY.

† For a map of legal abortion indications by Mexican state, see: GIRE. Omission and Indifference: Reproductive Rights in Mexico. pg. 32. http://bit.ly/1kerA6I.

* More recent data on the number of legal abortions performed in Mexico have been requested and are in the process of analysis.

† For more information on the current figures and statistics on legal abortion services in Mexico City, see http://gire.org.mx/nuestros-temas/aborto/cifras.

* GIRE’s legal defence does not require the women to declare whether the pregnancy was a wanted pregnancy or not, nor does the organization inquire as to whether the woman took medication to induce an abortion. Instead, GIRE’s legal defence is based on the legal inadmissibility of forced confessions and a lack of scientific evidence to prove the woman ingested a drug to induce abortion. At the same time, GIRE’s defence is based on the discriminatory nature of abortion law in Mexico and a lack of access to legal abortion services, in violation of women’s human rights, in addition to procedural elements, such as violations of due process.

† Name has been changed to protect the woman’s identity.

** For more information on Rebeca’s case, see GIRE’s report, p.38.

* The Court approved the constitutionality of fetal malformations as grounds for abortion (2002) and the decriminalization of abortion in the first trimester in Mexico City (2008), and dismissed, for procedural reasons, the unconstitutionality claim against the state-level constitutional amendments protecting life from conception (2011).