Female Sexual and Reproductive Health Beyond Foetal
Right to Life
A Comparative Analysis of Gender Equality in Mexican Criminal
Law with Relation to Abortion
Written by
Selma Geovanna Tello Garcia
Malmö University
Department of Global Political Studies Human Rights III, 15 Credits
Abstract
The aim of this study has been to analyse the ways Mexican states articulates the actions of women undergoing abortion and the effects it has on criminal sanctions specified for women. This study analyses the criminal code of Mexico City which decriminalised abortion in 2007, the criminal code of Jalisco reformed in 2009 and the criminal code of Yucatán reformed in 2009. The discrimination of women had been the major concern of International Human Rights Law as well of feminist jurisprudence. This research has attempt to problematise and highlight different aspects of discrimination taking place in Mexican law. Feminist liberal theory and radical feminism had been placed to analyse the criminal codes governing Mexican abortion law. Thus, in this thesis the problems of women to access legal abortion had been discussed as a problem of discrimination based on sex. Therefore, this study does not touch upon tensions between the foetus and the mother but the conflict that emerge in the ways the law thinks of women.
TABLE OF CONTENTS
1. Introduction 1
1.1. Research Problem 2
1.2. Aim and Research Questions 3
1.3. Relevance to Human Rights 4
1.4. Delimitation 4
1.5. Disposition 5
2. Method 5
2.1. Empirical Data 5
2.2. Comparative Legal Method 6
2.3. Possible weakness and strengths 7
2.4. Why to use legal comparative method? 7
3. The Abortion Landscape in Latin America and in Mexico 8 3.1. A historical view on abortion in the Latin American region 8 3.2. Consequences of restrictive abortion laws on women 10
3.3. Mexican Legal System and Abortion Law 11
3.4. The new legislative development on abortion in Mexico and 12 Mexico City’s landmark reformation in 2007
3.5. Legislative reformation in Jalisco 2009 14
3.6. Legislative reformation in Yucátan 2009 16
3.7. Summary 17
4. The definition of Abortion at the International Level 18
4.1. Right to Equality 19
4.2. The right to non-discrimination in the Health Care and before the Law 20 4.3. Right to Autonomy, Physical and Psychological Integrity 21
4.4. Summary 22
5. Cases presented before Supreme Tribunals of Justice 23 5.1. Case 61/2018 “Patient A” presented before the Supreme Tribunal of 23
Justice of Jalisco, April 2018
5.2. Case 454/2013 Supreme Tribunal of Justice Yucatán 25
6. Theory 27
6.1. The Premises and Development of Feminist Theory 28 6.2. Sexual Reproductive Freedom and Differences in Feminist Theories 29
6.3. Liberal Feminism Gender Inequality 29
6.4. Women as Immoral Agents 30
6.5. Radical feminism Good vs. Bad Mother in Patriarchy 31
7. Analysis 32
7.1. Analysing Documents 33
Federal Criminal Codes Arts. 329-332, Mexico City Arts. 144-146, 33 Jalisco Arts. 227-229 and Yucatán Arts. 389-392
7.1.1. Liberal Feminism Theory 33
7.1.2. Radical Feminism Theory 34
8. Conclusion 35
ABRABIATION
CIDAW Convention in the Elimination of all Forms of Discrimination Against Women GIRE Grupo de Información en Reproducción Elegida
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights ICPD International Conference on Population and Development
UN United Nations
1.
Introduction
In the last few years, in Mexico the legal rhetoric on women’s right to reproductive health had advanced in two opposite ways; the dilemma on foetal right to life and women’s autonomy is a factor that can be seen at first glance. However, the debate on abortion between progressive and conservative groups reveals the way politics and religion intersect with women’s bodies and sexuality. In Mexico, the setbacks women’s movements for sexual and reproductive autonomy had experience the last years reflects the growing diverging opinion on women’s rights (Amuchástegui et al. 2010, p. 289-290). Abortion has traditionally been criminalize based on the foetus right to life from conception, however paternalistic language legitimizing criminal sanctions for women inducing abortion may also be in tension with women’s right to autonomy and equality (Madrazo A., 2007, P.). Yet, restrictive regulations on abortion in Mexico affects women in the sense that they either choose for practicing unsafe abortion leading to health issues and legal consequences or even worst to bear the burden of obligatory motherhood. Studies show that disadvantage women living in rural areas are disproportionately affected by costs since it is only legal in Mexico City women are forced to travel long distance in order to resolve unintended pregnancies. But also because of the lack of access to health services (Singer O., 2009, P. 3).
In Mexico, the recognition of multiple reasons and circumstances behind a decision to interrupt pregnancy and conception had led to a variety of penalties for women inducing abortion. Most states hold statutes establishing criminal sanctions including prison time, integral health educative and medical programs for women. In the Mexican systems judges are entitled to decide if a woman inducing abortion is eligible for prison time or to undergo a comprehensive medical treatment as penalty. However, some states specify that health education and integral medical treatments are to reiterate human values of motherhood, to treat consequences caused by the effects of induced abortion and to preserve the family (GIRE, 2018, P. 18).
In its concluding observations of the ninth periodic report of Mexico the Committee on the Elimination of Discrimination against Women (para. 19.a) is concerned that persistent stereotypes and societal expectations about the roles of women and men in society and the family constitutes a threat for the advancements of equality. In its seventh report (para. 30) the Committee call upon Mexico to lower maternal mortality which amounted 53.5 deaths per 100,000 live births in 2010 which is far from Mexico’s Millennium Development Goal target
of 22.2 deaths per 100,000 live births for 2015 (CIDAW/C/MEX/CO/7-8, 2012). In its ninth periodic report (para. 41.a) the committee reiterates its concerns about maternal mortality caused by unsafe abortions as a result of restrictive abortion legislation amended in local criminal codes. The committee (para. 42.a) also calls upon Mexico to take all necessary means to harmonize the federal and state laws and protocols on abortion to guarantee access to legal abortion and access to post-abortion care even when abortion remains illegal (CEDAW/C/MEX/CO/9, 2018).
1.1. Research problem
First and foremost, it has to be understood that this study those not claim for law reformation based on that the law is the best way for women to achieve access to legal abortion but rather because the law has become the major barrier impeding women to exercise their sexual and reproductive rights. Neither, does this study focus on the conflicts between foetal and the mothers right. In this thesis, a mixt feminist theory will be placed in order to analyse the problems of women isolated from the foetus and men. This study seeks to gain insight in the ways women are articulated in Mexican criminal law with relation to abortion, and how these regulations reinforces gender hierarchies in criminal sanctions undermining women’s status. The basic elements of this study include an analysis on the representation of women their sexuality and reproductive health either as victims or as criminals. Thus, in this study it has been assumed that women’s subordination is the product of law defined in society by male supremacy.
Feminist theories provide a rich literature to analyse why women are told or thought in specific ways within the law. However, feminist not only investigate the reason behind treating women differently but also challenges societal notions about women encompassing systemic and structural elements (Glazer N., 2020, P.178). This study on abortion law is important; one because in the interpretation of the law crimes, subjects and sanctions can gain more clarity and transparency. Second, since abortion law treats a problem affecting only women it is important to put close attention to the reasons that lead to criminal sanctions for women. And third, it is highly important to gain deeper understanding on the content representing the legal subjects. This has to be done in order to assess the rational and irrational sides of the law (Ambos K., 2008, P. 1-2; and Berglund K., 2007, P. 16-18). Here, the feminist theories will be used together
with human rights concepts to highlight the ways abortion laws discriminates against women and what are Mexico’s international obligations to protect and guarantee women’s right to autonomy and equality.
1.2. Aim and Research Questions
The purpose of this study is to reach a better understanding on the constructions of women in the Mexican criminal law with relation to abortion and how these representations could be problematic. Ultimately, I seek to add on the knowledge necessary to address the dimensional effects that stereotypical discrimination has on women. This study stands for the need to abolish discriminatory laws against women as required by Mexico’s international obligations.
However, the discriminatory articulations cannot be found mentioned explicitly in restrictive abortion laws; that's why the answer to this problem must be found in the subtle nuances of the legal language. The methodology used in this paper will be a comparative legal method to compare how this law is enacted in 3 Mexican states holding restrictive abortion laws and 1 state with liberal abortion legislation. A comparative study between Mexican states is of relevance considering Mexico’s federal structure and that laws can be regulated at the local level.
Research questions: How are women articulated in criminal actions related to abortion in
Mexican criminal codes, and how does these representations affect women?
How are the subject women categorised in the Mexican abortion law, and what implications has different definitions among state?
How does the law define legal reasons and sanctions for women in abortion, and what are the consequences?
1.3.
Relevance to Human Rights
In Human Rights Law there is no a definition of abortion as a right per se, however several recognised human rights enable women with the right to decide freely and responsibly when to terminate a pregnancy. Thus, the right to abortion falls within many human rights such as the: right to privacy/autonomy, right to be free from all forms of discrimination, right to equality, right to life, the right to health and the right to be free from torture, cruel, inhuman or degrading treatment. Therefore, access to legal abortion is essential for the realisation of these rights (Sifris R. and Belton S., 2017, P.210).
On the other hand, abortion is relevant to human rights in the sense that when abortion is prohibited the consequences can be detrimental to women’s health and development. However, it is not only relevant to achieve women’s equality in the healthcare system but also fundamental for the development of democratic states where women can be equally represented. Nonetheless, abortion also touches upon other rights like equality in the marriage, right to education and participation in the public and private life (Kane G., 2008, P.363)
1.4. Delimitation
This thesis focuses mainly in the criminal system of Mexico and involves local criminal codes governing abortion in Mexico. However, this study will only provide an analysis of the language used in abortion legislation in Mexican states and not the law in practice. This thesis is limited to the construction of abortion crimes and representation of women in the abortion law. Thought, it is important to mention that the legal analysis provides both moral and ethical perspective on women’s right to abortion, but this thesis focus on the morality of the law. The idea to look into the legal language comes from that for abortion to be decriminalized it has to be clear upon which grounds a woman should be free to make choices over pregnancy. Although, the International Human Rights Law will be outlined but will not be deeply interpreted or compared with Mexican law it is only provided on women’s rights and the international obligations of Mexico as a signatory party. The international instruments to which Mexico is a party includes The Universal Declaration of Human Rights, the Inter-American Convention on Human Rights, International Covenant on Civil and Political Rights,
International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of Discrimination Against Women among others.
1.5. Disposition
The structure of this thesis includes seven main chapters starting with the introduction: this chapter provides a short introduction to the Latin American context of abortion and a historical movement that led to address women’s rights in the region. Consequently, a historical background on Mexican legal development and Mexican law is included. Second, in the methodological chapter the comparative legal method and the empirical material is presented. Third, the international instruments defining abortion as women’s human rights is provided and some cases to the national courts had been presented. Fifth, presents a mixt feminist theoretical framework including different waves of feminism. Sixth, in this chapter the criminal codes will be analysed, and a discussion will be presented. And seventh, in the final conclusion will summarise the outcomes of this research as well as recommendations for further research on the subject.
2.
Method
In this chapter, first I introduce and discuss my data selection. Secondly, I offer a presentation on legal comparative method including possible weaknesses and strengths. This method had been considered the most appropriate to both collect data but also to structure the analysis and fact findings for the purpose of this study. Although, the comparative legal method is used as the main framework to identify female representations in relation to crimes of abortion in the criminal codes.
The main focus in this thesis is a descriptive analysis on the Federal criminal code and the criminal codes of the states of Jalisco last reform 2009, Yucatan last reform 2009 and Mexico City last reform 2008. The criminal codes of these states had been chosen based on the wording they use to criminalize abortion and the different types of punishments they establish for women responsible for acts of abortion. They were chosen based on their differences but also their similarities in either criminalizing or decriminalizing abortion and the ways women are represented. An interpretation of the criminal codes is provided to see how they differ when defining women in relation to crimes of induce abortion. However, no geographic location had been considered because laws in Mexico generally reflect one way or another religious and cultural ideologies about women.
2.2. Comparative Legal Method
A comparative legal method had been chosen in this thesis to gather the criminal codes of three Mexican states. This method was chosen since it is relevant for conducting an intra-national analysis on Mexican abortion legislation. This method involves the systematic analysis of legal sources collected through interpretation of texts or field work. Thus, in comparative law the researcher collects data based on a specific issue or arrange through assessment. Comparative legal research also provides the opportunity to study the law either from a critical point of view or by providing a descriptive overview on the law or an entire legal system. This method can be used in quantitative or qualitative methods depending on the main aim of a research. Nonetheless, the main aim of comparative law is to identify similarities or differences between systems, instruments or differences between practice and theory. In criminal law, this method had been used mainly in legal practice to provide more rational legal systems establishing punishments on a proportionality-based approach. At the theoretical level, comparative legal method leads to understand the perpetrators in relation of a crime their construction, the rationality of the law and the establishment of punishments (Liu J, Travers M. and Chang L., 2017, P.8).
2.3. Possible weakness and strengths
One of the advantages of comparative method is that one can find meaning and legal issues only through comparative observations. Thus, the quality of a legal research depends mainly on the ability of the researcher to provide insightful comments on the similarities or differences between systems, institutions or texts. Also, a researcher in this area of study may encounter difficulties when comparing rules or systems from different countries. It can be challenging classifying material, interpreting documents or defining concepts in different languages which can lead to misconception. Another contribution of a comparative model is that it allows to offer an analysis from multiple perspectives including a gender-based analysis in relation to crime or the criminal justice. However, comparative legal research in criminal law allows not only to provide insightful comparative observations but also punishments and definitions of crime can be based on scientific and philosophical debate (Liu J, Travers M. and Chang L., 2017, P.8).
2.4. Why to use legal comparative method?
The comparative legal method had been relevant in collecting the legal material for the analysis in this thesis and also to find out about any gap that exist within legal legislations. This method was chosen to specifically focus on the issues of induced abortion which further allows to identify legal concepts and definition on the crime, female perpetrators and origin of the punishments. This method was the most appropriate to conduct a legal research that seeks to highlight the barriers stopping women from having access to legal abortion. To also illuminate the rights of women to decide over their maternities and above all over their bodies and their right to decision-making.
3. The Abortion Landscape in Latin America and in Mexico
In this chapter, a discussion about abortion and women’s reproductive rights in the Latin American region will be presented to better understand the abortion laws and culture in Mexico. The aim in this chapter is to reflect over how Mexico’s decision to criminalize abortion springs from a common world view about the female body and stigmatisation of female sexuality. This chapter presents an overview on the Latin American abortion landscape and women’s issues to access abortion and the political struggle for women’s rights. This chapter includes also a short introduction to the events, ideologies and principles underlying legal reformations on women’s reproductive health in Latin America. Also, a discussion on the processes that had led to the implementation and recognition of women’s rights is provided.
Nonetheless, an overview on the consequences the criminalization of abortion has on women is provided. And subsequently, this chapter will develop on Mexican legal system and legal reforms criminalizing abortion, it will focus specially in what constitutes a crime of abortion for women and the criminal sanctions for induced abortion. However, the legal system is not the focus of this thesis therefore an introduction will be provided followed by an extensive interpretation of criminal codes.
3.1. A historical view on abortion in the Latin American region
The case of Mexico cannot be understood separated from a Latin American context, thus in the region countries share the same moral and ethical basis upon which abortion is criminalized. In this region, the legal grounds for criminalization of abortion had traditionally been based on recognised rights of the foetus as a human being/citizen and right to life (Morgan L. and Roberts E., 2012, P. 243).
Abortion is said to be widely known method use across countries and cultures to terminate a pregnancy but even though the legal recognition of this practice reminds limited. Despite existing restrictive laws prohibiting induced abortion women chose to resolve unintended pregnancies through abortion (Guttmatcher Institute, 2013, P. 8). This is in fact the reality of many Latin American women since abortion remains highly restrictive in the region with only Cuba and Guyana who have liberalised the right to exercise abortion in all
circumstances. Both at the political and judicial level exist a tension between the unborn child’s right to life and the women’s right to autonomy. A general view across legal systems in this region is that the law protects and guarantees the right to life from conception and the interruption of pregnancy at any stage represents the death of a human being (Kane G., 2008, p. 361). However, public policies had also been concerned with public morality and abortion had been allowed only under limited reasons. Thus, the legal practice of abortion had been recognised only based on ethical grounds when women had been victims of violence, rape or risk for death. However, in many occasion women had been denied practicing legal abortion as established in national laws (Madrazo, A. 2007, P.206).
In Latin America abortion reformations had been contested by the Catholic church, human rights activists and feminists. In other words, abortion is a subject that not only reflects the struggles of women but also the political, social and economic realities of Latin American countries. Thus, the rights of women to determine their sexuality had been regulated formally in the law or informally by the community based on assumptions about women’s body and their roles in society (Reuterswärd C. et al., 2011, p. 805-808). Though, women’s reproductive rights had been gaining recognition as democratization processes set the pace for debates on human rights and gender equality. Since the Women’s Convention and the American Convention of Human Rights came to force governments had been held accountable for their international obligations and the protection of women’s right to reproductive health. Consequently, reproductive issues had been taking place in the political agenda of most Latin American countries and political discourses on abortion is slowly moving from public morality to women’s right to health and health care services (Beltran Y Puga, 2018, p.160).
In the last years some countries like Colombia and Mexico had seen some changes towards the liberalization of abortion but at the same time countries as El Salvador and Nicaragua criminalised abortion without exception. Thus, political and judicial discourses on abortion remains a struggle between progressive and conservative groups. These polarities between countries also reflects at the national and local level where abortion laws had undergone changes the last years. Mexico is one of the Latin American countries where abortion is regulated differently among states, where Mexico City was the first and only state to decriminalise abortion in 2008 (Reuterswärd C. et al., 2011, p. 887-808; and Paine J. et al., 2014, P. 61). The state of Oaxaca decriminalised abortion at the initial stage of this thesis and still waiting for approval from the Mexican Supreme Court. Other two states had decriminalized abortion during the writing process of this thesis.
3.2. Consequences of restrictive abortion laws on women
According to the non-profit policy research centre Guttmatcher Institute, unsafe abortion remains the only option available to women seeking to terminate unintended pregnancies in countries with restrictive laws. In a report from Guttmatcher Institute shows that between 2010 and 2014 a number of 6.5 million induced abortions per year were estimated to occurred in Latin America and Caribbean. The numbers indicate an increase of 4.4 million induced abortions that occurred between 1990 and 1994. The report also estimates that each year 44 per 1,000 women between the age of 15 and 44 had undergone abortion. In the Latin American region, abortion is not allowed under any circumstances in at least six countries, others do allow abortion under limited number of exceptions to save the life of a woman and in events of rape (Brazil, Chile, Mexico and Panama) among others. The numbers also show that at least 10 percent of maternal death in 2014 at the regional level was caused by unsafe abortion in most of the states where legal access is limited (Guttmatcher Institute, 2018).
In Mexico, at the state level in 12 states’ criminal codes abortion is allowed in events of rape but only during the first 12 weeks of pregnancy, while some types of authorization are required in at least 10 states and other 11 states require women to report to the authorities to start the procedure. A report from the Information Group on Reproductive Choice (GIRE, Grupo de Información en Reproducción Elegida) shows that in Mexico between 2007 and 2012 existed at least 127 sentences for acts of abortion and an approximate number of 62.5 of 1,000 women had been convicted for abortion. It also shows that most of the women are denounced for induced abortion when they seek health care services during complications or post-abortion care (GIRE, 2013, p.43-48). In Mexico in 2016 was registered an estimate of 11,808 births from girls between 10 to 14 years of age. From 2003 to 2016 the numbers show that early pregnancy in women of age 10 to 15 went from 7,277 to 11,808. The report also shows that 43.4 percent of girls admitted at the hospital was for delivery, other 14.8 for pregnancy related complications and a 6.82 percent for complications that led to abortion (IPA, 2016, P. 7-12). Another report on early pregnancy from 2018 also shows that 73.6 per 1,000 women between the age of 15 and 19 years gave birth in Mexico of which 10.09 percent of the pregnancies were result of rape (GIRE, 2018, p.12-13).
3.3. Mexican Legal System and Abortion Law
Mexico is a Federal Republic formed by 32 individual states governments and a Federal District (DF for its initials in Spanish) and mostly known as Mexico City. The Mexican legal system stems from the Civil Law tradition as result of Mexico’s historical relationship with Spain. Mexico adopted its first constitution after its independence in 1821 after 300 years of ruling under Spain and before that Mexico was ruled under pre-Columbian indigenous law. Therefore, modern Mexican legal system can be said to be the result of many social, political and historical factors. Mexico has written its constitution at least three times in 1824 after independence from Spain, in 1957 when liberal groups came to power and in 1917 after the Mexican Revolution. As the Mexican legal system belong to the Civil Law tradition the Federal Laws are systematically encoded in five main codes Civil Code, Civil Procedure, Criminal Code, Criminal Procedure and Commercial code. (The University of Arizona, 2015, P.1-6).
However, Mexican reforms in the criminal sector had been highly criticised for violating due process and breaching the rule of law. As a consequence, in 2008 Mexico issued a constitutional reform implementing a new accusatorial legal system to strengthen the rule of law and due process that seeks to protect and guarantee the human rights of accused persons. Nonetheless, it is said that the new accusatorial system represents features of modern states as most Latin American countries had been inspired by principles of democracy and seek to promote respect for human rights (Paola de la Rosa, 2019, P. 147-149).
Federal Criminal Law is the law that governs all criminal acts at the national level including abortion. The last constitutional changes concerning abortion were made in 1931 encoded in section VI, Art. 329 to Art. 334. In the constitutional conception of abortion old Spanish is the dominant language which can differ from modern language, the words “preñez” and “embarazo” are examples of this, the former is out of use from standard Spanish (also used for the mammal species) and the later mostly used for pregnant woman. Also, the word “product” is used to refer to the (embryo or foetus) which is still in used in restrictive abortion law. The 1931 Federal Criminal Code sets the standards for the regulation of abortion at the national level, but Mexico’s federal system allows states to ensure their own Penal Codes to define abortion at the state level (Madrazo A. 2007, P. 266 & García-Núñez N. et al., 2013, P.236). Nonetheless, in the few years Mexico has seen positive constitutional changes at the federal level and new reformations are highly concerned with violence against women and
women’s rights to contraception. A new reform (NOM-046-SSA2-2005) emitted by the Secretary of Health, establishes that healthcare institutions both private and public have the obligation to provide the day-after pill to women victims of sexual violence to prevent unintended pregnancies. However, such constitutional changes have very little impact in guaranteeing women’s right to legal abortion since the clauses stipulates reasons that are almost impossible for a woman to proof (Del Rosario M. and Sanchez J., 2014, P.180).
The federal law protects and guarantees the foetus right to life, it also focusses broadly on the consequences that leads to pregnancy while legal reasons to allow abortion depends on the circumstances. In Art. 329, it defines abortion as the “death of the product from conception” at any stage of pregnancy. The criminal sanctions apply to those provoking forced and consensual abortion with penalties of 6 to 8 years of prison when violence had been used and licenced medical professionals can be barred for 2 to 5 years, Art. 330 and Art. 331. Although, the statute establish links between penalties, marital and single status of a woman, the severity and length of penalties are linked to pregnancy and family values and honour. Article 332 establishes penalties of 2 to 5 years for women procuring abortion but could be reduced “a) if
a woman is in a legal union; b) if the woman manages to hide the pregnancy; and c) if the woman is not of a bad reputation and if a woman cannot proof any of the mentioned reason penalties will be doubled”. On the other hand, the right to exercise legal abortion can only be
accessed by women wither as patients or victims of violence in need of medical intervention. In Arts. 333 & 334 the statute established that abortion is not punishable a) in events of rape,
b) for imprudence of the woman and c) acceptable if authorised by two doctors when the life of the woman or the foetus are endangered.
3.4.
The new legislative development on abortion in Mexico and Mexico
City’s landmark reformation in 2007
In 2000 a new legal development started in Mexico when Mexico City issued its first reformation on abortion expanding the reason for allowing legal abortion and eliminated the honour-based predicaments on women’s marital status. The Legislative Assembly of Mexico City’s first reformation was the Robles Law (Ley Robles). The Robles Law declared
constitutional by the Supreme Court in 2002, established abortion to not be punishable when pregnancy is the result of rape, forced insemination, when the life of women or foetus are at risk. Also, it changed the honour-based predicament and the marital status of women stop to play a role in how the acts of women were sanctioned. However, the reasons were limited to those that gain societal approval covering matters of sexual violence and health issues of women (Madrazo A. 2007, P.268).
It was only in 2007 Mexico City moved to decriminalize abortion defining it as the
“interruption of pregnancy during the first 12 weeks of pregnancy”. The legislative definition
in Art. 144 defines women as the major subjects of legal protection defining the interruption of or continuation of pregnancy as the free will of women and based on the capability of every woman to make decisions. It also recognises prenatal age and defines it based on scientific terms and defines conception as the “process of human reproduction, when the embryo is
implanted in the endometrium”. In Article 145, abortion is defined in legal and illegal terms
based on the consent of women “interruption of pregnancy after 12 weeks of gestation with the
consent of the woman”. However, when abortion takes place without the consent of a woman
it amounts gender-based crime, Article 146 establish that every woman has the right to have its physical and mental integrity respected and protected from the interference of others. Although, penalties for women found guilty of abortion were diminished to 3 moths up to 6 moths or 100 to 300 days of public works. Increased penalties were also established for those provoking forced abortion on a woman including partners or physician, from 5 to 8 years of prison and when violence is used penalties are 8 to 10 years. Furthermore, Art. 147 induced abortion concerning licensed and unlicensed medical personnel impose additional sanctions authorizing the removal of medical licences and the banning from exercising medical profession 2 to 5 years.
These innovative legal definitions of abortion and pregnancy in the law are deemed important for the legitimacy of contraceptive methods and assisted reproduction. On the other hand, the new law also manifests and supports the autonomous status of women and their capability to make their own choices (Sánchez M. et al. 2008. P348-350). The abortion revolution initiated in 2000 in Mexico City which came to an end in 2007 was achieved through the united efforts made by medical professionals, leftist parties, Ministry of Health, Human Rights activists and feminist groups. The process was led by one of the most influential Mexican feminist anthropologists (Marta Llamas), in partnership with well-known NGO’s including the Information Group on Reproductive Choice. In addition, an alliance between
academics and NGO’s working on reproductive rights with the leftist political party (PRD, Party for a Democratic Revolution) led to a sufficient press for abortion reform. The abortion bill in Mexico City was also publicly supported by other influential celebrities, media influencers, newspapers and medical journals across the country. The landmark reformation in Mexico City established women’s rights to save abortion based on academic and scientific opinion concerning women’s bodily integrity and equality (Sánchez M. et al. 2008, P.350). However, the law in Mexico City recognises the right of medical professionals to object from inducing abortion if they hold belief contrary to abortion. The state of Jalisco and Mexico City adding amendments specifying the right to objection (Sierra M. 2012, p. 200).
3.5. Legislative reformation in Jalisco 2009
After the Mexico City’s statutory amendments decriminalizing abortion in 2007 at least 16 of 32 Mexican states decided to move in the opposite direction specifying their restrictions on abortion. This legislative duality on abortion between states now defines Mexico as the country with the most uneven abortion laws in Latin America. This in fact reveal the profound political history of Mexico, where debates on abortion falls between secular and religious groups.
The state of Jalisco was one of the first states to pass legislative amendments moving the focus from the circumstances that permits abortion to specify the right to life begins at the moment of conception. The state of Jalisco reformation of 2009 had been framed as the opposition to religious persecution from the Mexican state whose power is claimed to be centred around Mexico City. This constitutional amendment in Jalisco was approved by the Jalisco’s legislature in 2009 which also expands on criminal sanctions in the form of (medical treatment) that women can exchange instead for incarceration time. It is also one of the states in Central-Western Mexico that had experienced war between clerical and anticlerical groups since 1929. The “Cristeros War” is in fact a very well-known political event in Jalisco. This armed conflict raised in 1926 when Mexico initiated post-revolutionary liberal reformations aiming to cut the ties with the Catholic church. Until now Jalisco holds a strong bond with the Catholic Church and preserve one of the most restrictive abortion laws but is not the only one (Lynn Morgan, 2019, P.536,540).
Jalisco has a history in opposing federal constitutional changes on women’s right to sexual and reproductive rights. In 2009 the same year Jalisco passed the legislative reform to protect life from conception, the governor of Jalisco presented before the Supreme Court of Justice a constitutional controversy against the new healthcare reform on the day-after pill released by the Secretary of Health. This reform was considered interfering with local laws based on that the after-day pill have abortive effects, which is against Jalisco’s constitutional protection to life from conception and local norms on the procuration and administration of justice. This interposition was declared unconstitutional by the Mexican supreme Court, however the challenge to fully apply Mexican law relays on public authorities (Del Rosario M. and Sanchez J., 2014, P. 180-181).
In Jalisco abortion is encoded in the criminal code of the state of Jalisco last reformed in 2009 in section VIII, Art. (227). The criminalization of acts of abortion are in the same vein of the federal code. Its Articles 227 and 229 are similar to the federal criminal code specifying the foetus right to life from conception and legal grounds for the practice of abortion also include rape, imprudence, when woman risks for death and foetal anomalies. This statute also establishes penalties for women based on honour, the reasons leading to conception, pregnancy and family values and foetal age. In Art. 228, the statute establishes harsher sanctions than any other state and penalties can be “double” or “triple” 1) if a woman is not of a bad reputation;
2) if a woman had successfully hided the pregnancy; 3) if her pregnancy is fruit of a legal union; or 4) if the abortion was procured during the first five months of pregnancy. If one of
the four reasons cannot be verified the penalty will be double and if any of the reasons the “penalty can be tripled”.
While sentences for women varies depending on the circumstance the sanctions for those assisting women to induce abortion is specified 2 to 5 years of prison and without a woman’s consent 4 to 6 years. Under provisions of Art. 228, judges are entitled to substitute women’s prison time with medical treatments (tratamiento médico integral) if the woman agrees and only if it is the first time procuring abortion. According to Art. 228 integral medical treatments have as objective to provide treatments for “consequences” generated by practices of induced abortion and to “foster human values of pregnancy and to fortify the family”. Another, reason in Jalisco’s criminal code is that sanctions can also diminished if the abortion was induced during the first five months of gestation. It is not clear if after the fifth month abortion is totally band (constitutes homicide) or if it is less morally wrong to induce abortion during the first five months.
3.6.
Legislative reformation in Yúcatan 2009
As it can be seen, at the state level Mexico’s abortion law ranges on a scale from restrictive to liberal. The state of Yucatan which is situated in south-eastern Mexico includes more causals that allows abortion. This is also the only state in Mexico to include economical causes that allow women to procure legal abortion if economic circumstances are severe. On August 2009, legislative amendments were approved in the state of Yucantán with a new Article 1°, recognising, guaranteeing and protecting the right to life of every human being from the moment of conception until their natural death. The new rule was passed through a voting process in the Congress of Yucantán. Prior to this change the conceptualization of abortion has been the death of the product different to the protection of life from conception. Yucantán like other Mexican state reflects the local political duality within which abortion debate takes place. The abortion reform was introduced by the parliamentary group of the Partido Revolucionario Institutional (PRI) together with the popular initiative to prohibit same-sex marriage, both been declared constitutional in 2009. The PRI parliamentary group motivated the need for such a reformation based on that the total decriminalization of abortion is immoral alleging that for every induced abortion dies a human being. Yet, the legislative project on abortion and same-sex marriage in Yucantán was led by the PRI party in collaboration with religious and anti-gay groups defending traditional family values (Lilian Balam & Katia Rejon, 2019).
Abortion law in Yucantán differs from other restrictive laws including penalties for women that focus on a women’s status as mothers, poor, women’s lack of education and awareness about maternity values. However, at difference of other states it is not concerned with the woman’s married or single status. The reform of 2009 led to an additional Article encoded in Art. 1° of the Criminal Code which specifies that “life starts from conception”. At difference to the Federal and Jalisco legislations, section VI, Article 389 establishes five reasons for legal and permissible abortion 1) when its product of imprudence, 2) in case of rape, 3)
non-consented artificial insemination, 4) when the economic circumstances are grave and justified but women should at least have three children, and 5) when genetic disorder or congenital malformation of the product represent risk to physical abnormality or illness. However, it has
to be under the consent of both progenitors and the recurring opinion of two doctors. In addition, Article 392 punishments for women are 3 months to 1 year but judges are entitled to substitute prison time for integral medical treatment which will be determined by the healthcare
institutions. Without specification on the medical treatment it establishes that the aim of the medical treatment is to treat the effects and consequences caused by induced abortion, thus this statement slightly different to the state of Jalisco does not state the need for fostering values of pregnancy or to preserve the family. Yucantán’s Art. 392 is the only one using the word “mother” instead of woman, when defining penalties for women inducing abortion. Although, Art. 392 responsibilities of pregnancy imposed upon women when the woman’s conduct leads to pregnancy is removed when the woman is extremely poor, mother of at least three children or when the woman is victim of violence.
3.7.
Summary
The criminal character of abortion in Mexican law is defined as an act that conveys the death of the product from conception. The criminal sanctions are based on the acts of women or the acts of others leading to the termination of the foetus life. Also, legislative maternal responsibilities are established depending on the circumstances that leads a woman to become pregnant. The different criminal sanctions define women in different categories: generally, in restrictive laws the single and married women and extremely poor women/mothers.
At the conceptual level abortion in Mexican criminal codes define conception, foetus/person, pregnancy, abortion and different categories of women. The statutory concept of abortion establishes different types of abortion: culpable abortion, as result from the imprudence of the woman or accident is not sanctioned; spontaneous abortion, when the causes leading to abortion cannot be identifies, also called (miscarriage) but not defined in the law;
abortion honoris causa when a woman induces abortion voluntarily leads to 6 months up to 5
years of prison; and necessity-based abortion when the life of the woman is at risk is permissible with the opinion of two doctors.
Some differences had been identified between the federal and local laws, both Jalisco and Yucantán expands on reasons allowing abortion when the foetus suffers of congenital malformation, due to severe financial situations and when pregnancy is caused by artificial insemination. The types of abortion define the length and severity of punishments for acts of
abortion but also depending on who provoke the abortion penalties may differ. For example, for medical and paramedical practitioners the penalties differ depending on if it occurs under the consent of women or by using violence, including a woman’s partner. Nonetheless, both in the Federal and Jalisco’s criminal code penalties depends on the reasons behind a woman’s decision to practice abortion. The criminal character of abortion seems to diminish when a woman successfully hides the pregnancy and when a woman conceives within a marriage. Whereas, women becoming pregnant in pre-marital sexual relationships are considered as of bad reputation and sanctions can be harsher leading to longer prison time. Acts of abortion are not only punished based on the foetus right to life but based on the motives behind women’s decisions and sexual conduct. However, Yucantán lacks clauses based on the marital status of women but requires the consent of both progenitors when pregnancy could lead to the death of the woman or foetal abnormality. Although, women living in unbearable economic situations have to give birth at least three children before they can access legal abortion.
However, some differences exist between Jalisco, Yucantán and Mexico City. In Jalisco, legislative sexual behaviour for women is confined with the concept of matrimony and good reputation. But in Yucantán a woman requires the husband permission to practice abortion even when the woman’s health is at risk. Mexico City specifies women’s right to exercise abortion based on their autonomous right to make decisions. Meanwhile, in Jalisco and Yucantán pregnancy is define as a medical condition and women can exercise legal abortion either as patients or as victims of sexual violence. In addition, the control of pregnancy and abortion decisions are regarded as the responsibility of public authorities.
The similar ways abortion, women and pregnancy are defined is clearer between restrictive legislation, however the more causals a statute includes to allow abortion the more it differs. Significant differences can be found between Mexico City’s abortion law and the other states mentioned above. The differences can also be seen at the ideological level where abortion is recognised to be the interruption of pregnancy rather than the death of a human being. The law of Mexico City is concerned with the status of women as individuals with the capability to decide over their sexuality, and pregnancy and abortion should be consensual.
In this chapter, a review on the international provisions on abortion will be presented including the legal and conceptual definition of abortion and the legal framework within which women’s reproductive health is recognised as human rights. This chapter focus on women’s right to equality and autonomy drawing on main Articles, non-discrimination and privacy principles.
4.1.
Right to Equality
The United Nations (UN) had in many occasions adopted different approaches to the reproductive health of women. The declaration act adopted by 174 states in 1968 at the Teheran International Conference on Population and Development (ICPD), recognises women right to equality in the marriage and in the family. It recognises in (para. 16 and 18) the rights of both women and men to “freely and responsibly decide on the number and spacing of their children”. Reproductive health is also defined in the Cairo Action Programme 1994, adopted by 184 UN member states. The Action Program (Principle 8) defines reproductive health as a basic human right, governments committed to provide equal healthcare to men and women and healthcare services that guarantee sexual and reproductive rights. The Action Programme (para. 8.19) defines abortion in connection to Art. 7 of the International Covenant on Civil and Political Rights (ICCPR). The Cairo Program squarely defines abortion as women’s right to life, it recognises abortion as the major cause leading to maternal mortality. In the Cairo Programme (para. 8.19), pregnancy related complications are estimated to cause the death of at least 500,000 women every year. In this Programme (para. 8.21) member states also agreed to take the necessary means to reduce maternal mortality at the national level by cutting one half of their 1990 levels by the years 2000 and other one half by 20015.
A more formal conception of equality linked to reproductive rights can also be found in the United Nations Universal Declaration on Human Rights (UDHR) dated 1948. The Universal Declaration Art. 16 (1) by recognising women’s right to form a family implicitly recognises the reproductive rights of women. It stipulates that women and men are entitled with equal rights in the marriage.
4.2.
The right to non-discrimination in the Health Care and before the
Law
Women’s right to reproductive health are granted in Article 2 (1) and 3 of the International Covenant on Civil and Political Rights (ICCPR), which require states to protect and guarantee the recognised rights of men and women enlisted in the Convention. On the other hand, ICCPR Art. 26 prohibits all kind of discrimination in the law or in any other area protected and regulated by public authorities. Article 2 (1) of ICCPR reads as follows: “Each state party to
the Covenant undertakes to respect and ensure to all individuals within its territory and subjects to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The recognised rights in ICCPR entail governments
with negative obligations requiring governments to abolish all practices that discriminates against women’s reproductive health ().
Furthermore, Art. 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) grants the right to healthcare and the right of individuals to access healthcare services without discrimination. As it is established in Article 2 (2) governments have the obligation to actively engage in guaranteeing the recognised rights in this Covenant. The principle of non-discrimination is also recognised in Article 1 of the American Convention of Human Rights. The American Convention Art. 1 prohibits discrimination in the same light as the tow Covenants requiring governments to respect and guarantee the recognised rights of individuals without discrimination based on “…race, color, economic status, birth or any other political or other opinion…”.
A broader definition of gender-based discrimination and specially discrimination against women are further established in the Covenant on the Elimination of All Forms of Discrimination against Women (CIDAW). Its Article (1) reads: “For the purpose of the present
Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effects or purposes of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.
The Women’s Convention definition encompass the physical and psychological integrity of women expanding on the equal recognition of men and women before the law. This Convention specifies that women should be free from discrimination in the law, free from gender prejudice and free from coercion. Article 2 (a, f & g) of the CEDAW require states to revise their constitutions and to abolish laws, penal provisions, cultural or social practices discriminatory to women. Article 2 (b, c & d) also establishes governments’ obligations to adopt appropriate legislative measures prohibiting all types of discrimination against women.
4.3.
Right to Autonomy, Physical and Psychological Integrity
The right to autonomy had been broadly define at the thirteenth Regional Conference on Women in Latin America and the Caribbean: as the capacity of every human being to take free and informed decision about their lives. It also states that full equality can be achieve if the unique aspirations and desires of all human beings are protected and ensured by the states. Though, women’s autonomy is classified in three dimensions. First, the women’s “economic autonomy” enables women with the right to participate in the private and public life, the right to employment and investment. Second, “women’s physical autonomy” express women’s right to decide over their own bodies. And the third dimension, “women’s decision-making autonomy” establishes women’s right to participate in public affairs and decisions affecting their lives (Thirteenth Regional Conference on Women, p. 4-17).
The Committee on the Elimination of Discrimination against Women in its general recommendations No. 35, (para.18) specifies that the criminalization of abortion and the forced continuation of pregnancy as constituting gender-based violence, that depending on the context it can be interpreted as torture, cruel, inhuman or degrading treatment (CIDAW, 2017).
On the other hand, in the Beijing platform (para. 89) women’s reproductive health is defined as the “emotional, social and physical well-being and is determine by the social,
political and economic context of their lives, as well as by biology”. The Beijing Platform (para.
106.g, h and k) addresses women’s right to abortion under the constitutional rights of autonomy, liberty and security of persons. Both Beijing (para.106) and Cairo Program (para.7.5) interpret the right to autonomy and privacy interrelated with other rights such as the right to health care services, the enjoyment of advance technologies to an affordable price and the right to attainable
health. The Beijing platform (para. 94) also calls upon governments to review punitive measurements against women who have undergone illegal abortions.
The right to autonomy, liberty of persons freedom from coercion are granted in Art. 17 ICCPR and Art. 11 of the American Convention of Human Rights. Both the International and the Regional system of human right emphasize in the right of “freedom and liberty of persons”. The Covenant and American Convention Articles on private and family life establish that individuals have the right to make decisions freely and without coercion. Article 11(1) of the American Convention further expresses that “everyone has the right to have his honor
respected and his dignity recognized” including the right to confidentiality as established in
Art. 17 of the ICCPR.
The American Convention of Human Rights by contrast touches upon abortion more directly as stated in its Art. 4 (1) “every human being has the right to life and should be
respected from the moment of conception”. However, in its interpretation of the right to life
with relation to the foetus the Inter-American Court established that it is not absolute and that this should offer a gradual protection during prenatal life. According, to this interpretation a woman’s right cannot be disqualified by foetal rights (Case Artavia Murillo et al. vs Costa Rica, 2012).
4.4. Summary
In the international arena, the right to abortion had been interpreted based on other inherent human rights of people. In the case of women, the international community agrees upon that women are autonomous individuals that have the right to make their own decisions and in cases when abortion results in the death of women it constitutes a violation to the right to life. Also, international instruments entail women with the basic right to healthcare, healthcare services and to decide over the number and spacing of their children. On the other hand, the non-discrimination principle is based on that all human beings have constitutional rights and governments should respect and protect those rights equally. The right to abortion is sometimes a inter alia linked to the physical and mental health and the integrity of persons. The non-discrimination principle further requires the equal treatment of woman and men in the law, in the marriage and in the family. The view on equality from an international perspective is based
on that both men and woman have the mental and physical capacity to make decisions on their own.
5.
Cases presented before Supreme Tribunals of Justice
In this chapter, the cases provided had been presented before the Mexican District Courts and Supreme Tribunal of Justice of Jalisco and Yucatán. These cases were chosen for their relevance in the vocabulary used by judges and public authorities in judgements of women incriminated for the acts for abortion. After all, it is in the practice of justice the effects of legal framing of crime and women as predators can be understood. The Supreme Tribunals were chosen since cases from the Mexican Supreme Court were not accessible outside the continent for online security reasons.
5.1.
Case 61/2018 “Patient A” presented before the Supreme Tribunal of
Justice of Jalisco, April 2018
According to this case, it was October 2017 a pregnant woman arrived at the Hospital of the Mexican Institute of Social Security of Jalisco for haemorrhage and abdominal pain. During the medical check-up, the doctor found that the haemorrhage was cause of an abortion and discovered “residues of pills in the cervical canal” of the patient. The patient was taken to the operation room for a Vacuum Aspiration when the doctor found that the lining of the womb had broken down and the pregnancy had been lost. The doctor talked to her college who reported to the Public Prosecutor of Jalisco about the event and prepared an interview with the patient. In the interview, it was stated that the patient confessed to “obtained the pills from a
woman when she told her she did not want to have the child because she suffers from a blood disease and that her first child was already infected, was unemployed and had already two children”. In the interview with the Public Prosecutor affirmed what she said in the interview
Court of Jalisco sentence the woman to four months of prison and declared her free from payment of reparation for the death of the product.
In April 2018, an Agent appointed by the Public Prosecutor to investigate the abortion case of patient A. appalled to Supreme Tribunal of Justice of Jalisco against the decision from the Trial Court. He claimed that the court failed to apply the Art. 234 of the Criminal Code of Procedure of Jalisco and Art. 19 of the Federal Law of Procedure. He claimed that the accused was responsible for the payment of reparation by planning and executing the abortion which led to the death of the product. He claimed that the reports from the medical and forensic staff showed that the product was alive before it was extracted from the uterus through medical procedure. The appellant sited Mexican authors defining abortion as the “death of the product from conception at any stage of pregnancy” or as the “interruption of life” in line with the Criminal Code of Jalisco Art. 227 and 228. He claimed according to the definition of abortion the woman is responsible for the payment of $354,706.00 (Mexican Pesos) in reparation. The Agent asked the Tribunal to request the court to call medical experts to attest the reports presented by the Public Prosecutor that had been discounted as invalid.
Together with the legal suit the Agent from the Public Prosecutor presented medical tests of the accused and one of the product which showed the cause of abortion. The medical report stated that the woman did not present any signs from suffering physical violence that could cause abdominal pain. According, to the medical rapport “at first glance the foetal
product had a length of 6 centimetres, was covered in blood and both upper and lower limb were formed, at the same time a dent in the baby’s head could be found”. The forensic autopsy
showed it was a non-viable pregnancy since the product was only eleven weeks old. The autopsy also showed injuries in the thorax and abdominal part of the product as causes of “mechanical manoeuvres” (medical surgery) which caused the death of the product. According to the forensic report no “foetal malformation” could be found and the product “did not breath at the moment of birth”.
In a hearing the patient, who was represented by a lawyer claimed that she had been at hospital before fore medical control since she was suffering from a Urinary tract infection. She also claimed she was the mother of two children, was unemployed and suffers from a blood disease the reasons why she decided to induce abortion. The patient also maintained that she regrets of her actions and asked the authorities to take in consideration her situation and testimony as a confection and to impose on her a minimum penalty as established in the Mexican law.
The Supreme Tribunal of Jalisco after its analysis of the case concluded that the affidavits presented by the Agent form the Public Prosecutor are invalid source of evidence since the reports lack verification from the experts. The Tribunal also cited the Supreme Court of Justice stating that the legal standards for collection of evidence in criminal procedure in Jalisco are unconstitutional and violates the principle of equal treatment. The tribunal claimed that in order to generate conviction the adversaries should be provided with equal opportunity to influence decision. That the procedure law in Jalisco exempts professionals from attesting their reports and requires the accused to present certified documents as proof of evidence result discriminatory. It also highlights that the principle of equality cannot be found in the Federal constitution but that the 2008 reform on Mexican law of procedure Art. 206 stipulates that all parties involved in a case should enjoy of the same standards for evidence without exception. On the other hand, the Tribunal concluded that the patient’s pregnancy was non-viable since the product was only eleven weeks old and that abortion means “the interruption of foetal
development during pregnancy before twenty weeks of gestation”. Herein, the Tribunal decided
that the accused cannot be charged with reparation payments since it did not cause the death of a fully formed “person”. Furthermore, the Tribunal decided that the accused should be condemned to four months of prison for acting against the norms established in Art. 227 and 228 of the Criminal code of Jalisco. And finally, the Tribunal concluded that during prison time the woman should undergo any kind of work and should be provided with programs/treatments that lead to her “social and moral regeneration” (Case 61/2018, p. 1-6).
5.2. Case 454/2013 Supreme Tribunal of Justice Yucatán
According to this grievance suit, a social worker reported to the Public Prosecutor about a woman that was admitted at the Regional General Hospital with complications of abortion and intoxication. The woman who was pregnant was admitted to the Regional General Hospital 18 June 2013 suffering of abdominal pain and vaginal bleeding. The medical staff reported the event to the police. At the hospital, the doctor diagnosed an “incomplete abortion of first
trimester pregnancy, intoxication caused by an overdose of Misoprostol, 28 (abortive pills)”.
When the doctor told the woman, she will be hospitalised she asked the doctor to inform her partner who was waiting outside for her but the staff from the hospital told her they could not find him.
The woman, in an interview at the hospital said she was a student in Psychology at the university where she met her partner a teacher from the same university. In the same report, it was stated that the woman after finding out she was pregnant decided to interrupt the pregnancy because “she had a child, was single mother and her parents were taking care of her expenses
since she dropped off from the university”. In a hearing at Public Prosecutor’s Office the woman
who was represented by a lawyer declared that together with her partner they were discussing about to terminate the pregnancy since it will have negative effect on him and his work as a teacher. The woman stated that one evening at her partner’s home he gave her a box with pills and told her to take five pills every hour until she finished the box. After she finished the pills her partner gave her, he continued giving her more pills but then she realized they were different. According to her testimony when she started feeling bad and bleeding abundantly her partner bought diapers for her but after she started losing awareness he took her to his friend who was a doctor who told him to take the woman to the emergency. In her testimony, her partner did not follow her in the hospital because he did not want to be seen in that situation with her, but he told her he will be waiting for her outside. After the event, the woman claimed she did not see or hear about him.
A student from the university who left the woman’s belongings to the hospital told the Public Prosecutor his teacher appeared one evening and asked him to help him to deliver the belongings of a friend who was at the hospital. The student claimed he did not know the woman and remember seeing her once together with his teacher. The student told the Public Prosecutor his teacher told him about the incident and after that he took distance from him and did not see again his teacher at the university. In a searching at the partner’s place the Public Prosecutor also found a box of Misoprostol 200mg.
The 18 September 2013 a judge from the District Court decided to leave the woman’s partner free of charge because it found that the proof of evidence presented by the Public Prosecutor was insufficient to incriminate the accused.
In February 2013, the Public Prosecutor Officer of Yucatán appealed against the judgement delivered by the District court 18 September 2011 and requested the Supreme Tribunal of Justice for review. He claimed that under Art. 329 and numeral 323 of the Criminal Code of Procedure and Art. 389 and 390 of the Criminal Code of the state of Yucatán in conjunction with Art. 19 of Federal Law, everyone that practice, provoke or execute an abortion with the consent of a woman should be punished with prison. He claimed the court’s decision cause him grievance.
The Supreme Tribunal of Justice pronounced in May 2019 that the Public Prosecutor’s work implicates to collect the facts meanwhile it is the court who interprets and apply the law. The Tribunal interpreted abortion as stated by the norms as the interruption of “human life before birth”. It also sited Mexican authors defining abortion as “the interruption of the
physiological process of gestation… the destruction or death of the fruit from conception”.
According to its judgement, an act of abortion means to “practice, provoke, induce or execute” abortion through any means with the consent of the woman. The judges at the Tribunal referred to the Inter-American Convention on Human Rights and the pronunciation of Inter-American court on cases of forced abortion and sterilisation. The judges concluded that the Convention protects prenatal life from conception and that the court in cases of forced abortion defines the unborn as “minors, children and babies”. Herein, the judges unanimously decided that all types of abortion are in an offence of the unborn child’s right to life. In this decision, the Tribunal also interpreted Art. 1 of the Criminal Code of Yucatán to be in line with the provision of the Convention’s Art. 4 protecting and guaranteeing the right to life from conception.
Furthermore, in this case the Tribunal declare that the Officer from the Public Prosecutor had not presented enough evidence and the accused is free from sanctions relating to abortion. On the other hand, the Tribunal decided that the offended parties included the unborn child, his family and the society. In its decision, the Tribunal requires the authorities to inform the unborn child’s family and the society about the truth through Yucatán’s Official Public Record. And finally, the Tribunal require the District Court to conduct a further investigation to collect facts on this case before closure.
6. Theory
In this study, feminist theories were considered a relevant category of analysis, as these theories focus on the history of women and provide an analytical tool to analyse and explore the effects of paternalist language in the law’s categorization of women their bodies, sexuality and reproductive health. Hence, feminist literature not only help to identify distorted construction of women but also challenges sexist ways women and problems of women are view, told or thought in the law. Thus, in this study women had been presumed to be a group that suffer of systemic discrimination on the basis of sex, in fact these theories allow to analyse the case of
