Abortion and the Mexican Constitution
Reforma: Diego Valadés
Translated by Brittany Doss
April 1, 2014
Summarized and expanded:
Here’s what’s confusing.
According to Diego Valadés article, you can get a legal abortion in the first 12 weeks of pregnancy in Mexico City (approved by the city’s legislature in 2007).
But the same procedure has been criminalized in 17 other states in Mexico—even though the Supreme Court of Justice (at the federal level) has declared its constitutionality.
The trouble—plus the confusion—may be that the court did not establish a jurisprudence, i.e. binding written law.
This left a legal vacuum that local legislatures rushed to fill with all kinds of restrictions, in defiance of the Supreme Court ruling and led by the federal Attorney General’s Office and the federal National Human Rights Commission—both located in Mexico City.
Hence, there is plenty of room for confusion and the fog of ambiguity that weakens the rule of law in Mexico.
In 2011, the name of the first chapter of the Constitution was changed to “Of Human Rights and Their Guarantees.”
Article 1 of that chapter speaks of the inviolability of the human rights laws, which should be interpreted following the Constitution—for the protection of the people by applying the principles of interdependence, indivisibility and progressivity—alas, in my opinion, words to vague to count as law.
The same document talks about 3 concepts that shall apply throughout the country: pro persona, universality and progressivity.
That is, with legal protections first and foremost for persons exercising a right (as opposed to protection of the legal whims of bureaucrats and politicians); everyone shall be granted these human rights; the protections are open to evolution toward progressivity, i.e. to greater—not fewer—protections.
But, in reality, there is no universality if women outside of Mexico City do not enjoy the constitutional protections granted to women inside the city.
Here is the rub: “According to the 2011 reform of penal law, it’s unconstitutional to prosecute an action as a crime in one part of Mexico when it is protected as a right in another.”
Supposedly, women outside of Mexico City can seek redress through amparos—appeals or injunctions—when accused of criminal abortion.
Women accused of aggravated murder (abortion, stillbirth and misscarriage) in reality find little legal recourse once the indictment begins.
In my city of Guanajuato, and in the entire state of Guanajuata, women are regularly accused of murder by vengeful neighbors, (ex)husbands, in-laws and busybodies in cases of miscarriage or stillbirth. A local Women’s Rights Group, Las Libres, fought for and got the release of six women accused of murder in this state, in instances of stillbirth and miscarriage. Some of them had already served years in prison and faced the prospect of many more.