Mexico’s Supreme Court grapples with the question of ‘right to life’
Mexico is in turmoil this week over the start of deliberations on the constitutionality of reforms made to 18 state constitutions regarding the right to life from conception. The rejection of such reforms is seen as success for human and reproductive rights of women.
The discussion is centered on two legislations in particular, the reforms made in Baja California and San Luis Potosí state constitutions, but the supreme court ruling could affect all the other16 states that have made similar reforms.
In the case of Baja California, the 7th amendment to the state constitution was changed December 2008 to protect the right to life “from the moment of conception to natural death”.
Not long ago, federal law in Mexico allowed the voluntary termination of pregnancy in case of rape, incest, malformation and even poverty (in some states). But ever since Mexico City approved legislation to allow the termination of any pregnancy before the 12th week, states raced to change their state legislation as to prevent this from happening nationwide.
The arguments against the constitutionality of this local constitutions changing are basically two:
1. The reforms give legal personality to those who are not born. Something unprecedented in modern law and contrary to scientific evidence backed by the World Health Organization, which supports the termination of pregnancy before week 12, before the nervous system of the fetus is yet formed.
2. The reforms go against the principle of equality for women and the right to decide to have or not to have children; how many and how far apart. This is stated in the constitution and in all of the international accords signed by Mexico.
The consequences of the law changing in Baja California has been dozens of women taken to court to explain the circumstances of their loss (many of them miscarriages) with some of them under investigation and even jailed.
In a very public case, a teenager from Mexicali was found guilty of manslaughter, aggravated by family relationship and sentenced to 23 years in prison.
Leslie, she was 8 months pregnant when she says she woke up covered in blood and in horrible pain because of losing the baby.
“I wasn’t sure what was happening I could not even see from the pain, but I crawled to the bathroom” she told reporters from prison.
She was only 19 years old –already the mother of a 2 year old—living at home as a single mother, when she had the miscarriage. Her family took her to the hospital where she was treated for loss of blood and arrested.
The baby’s body had some bruising and Leslie claims it was from the miscarriage when it fell into the floor.
“People at the hospital just told me I might have a slight legal problem…” she remembers.
She was found guilty of manslaughter and spent the next two years in a Mexicali prison. She was later released because prosecutors were not able to prove Leslie’s intent or desire to kill her child.
“This case is a clear example of a violation of the right to due process, presumption of innocence and adequate defense” says Leslie’s lawyer and ex-judge Arnoldo Castillo, “intent was never proven and yet they sentenced her very harshly”.
Baja California has a dark past on the issue. In 2000 a 13 year old was raped and pregnant, she and her family invoked on her right to an abortion but state officials with the help of religious organizations, prevented this from happening until the law no longer allowed it.
The case was taken to International Court and won against Mexican State that was ordered to guarantee the free access to contraception and termination of pregnancy for women who are victims of rape.
This is far from happening, in fact it has gotten worse, because current laws “protecting life from conception” have implications against assisted reproduction and even the use of some birth control methods as the IUD (Intra Uterine Device) or emergency contraception because they in fact don’t allow the fertilized egg to be implanted in the uterine wall.
Academic, activist Lucía Meglar, cofunder of a non-profit against violence against women called “Ni una Mas” considers the discussion should be in regards not to religious beliefs or ethics, but simple social justice.
“As the law currently stands [in Baja California] if somebody wants to interrupt a pregnancy in the first month it is not an abortion but murder, with a much higher penalty than an abortion” she explains, “and this opens the door to the prohibition of contraception methods such as IUD or the emergency pill”.
If the reforms are considered unconstitutional and contrary to international accords, this would impact the lives of many women, specially those in vulnerable situations including working class, migrants, indigenous or teen girls, who are most likely to seek an abortion in unsanitary conditions.
“Truth be told, this law has been used against women who are poor, indigenous and lack access to proper care and education, those who can’t afford a private clinic” says Eduardo Bartolini, legal advisor for the Human Rights Attorneys office in Baja California, one of the groups that filed the claim against the constitutionality claim.
Meglar is keen on the fact this is a social class struggle.
“In this country, women with resources can go to any private practitioner and say ‘I need an abortion’ and get one the next day. They go to a private hospital and are treated like a queen and walk out of there and move on” she says. “On the other hand poor women have to go to the same ordeal in the worst sanitary conditions and jeopardize their health or even their lives”.
This is even clearer in border areas like Tijuana, where there is always the possibility of going to San Diego to get an abortion (sometimes vice-versa), The chance to do this legally is only available to middle and upper class Mexicans with a passport and visa.
“There are appalling cases documented” says Meglar, “one, of a 10 year old made to carry a pregnancy to term after being raped by her father, one of a woman who had cancer and was denied treatment because she was pregnant, What the challenge is stating is basically the law can not go to extremes to protect the rights of one (unborn children) and trample over the rights of the other (women) because its unconstitutional”.
The Supreme Court has 11 judges and 8 votes are needed for the laws to be revoked. So far only 5 votes have been delivered: Two against and 3 agreeing the laws are unconstitutional.
But as the coin turns in the air, the Interamerican Womens’ Rights Network is getting ready to present their case claiming Mexico is discriminating against women in the cases of Alexis Medina, jailed with charges of drug trafficking; the Leslie case for 3 years of false imprisonment and other cases against transgender sexual workers that have been killed in hate crimes.
If the votes don’t revoke local laws, the case put forward by the Women Scholars Federation in Hague, Geneva, on Oct 26 would include those laws as going against the equality of Mexican women.