Female Sexual and Reproductive Health Beyond Foetal Right to Life

A Comparative Analysis of Gender Equality in Mexican Criminal Law with Relation to

Written by Selma Geovanna Tello Garcia

Malmö University Department of Global Political Studies Human Rights III, 15 Credits Spring Semester 2020 Supervisor: Kamal Makili-Aliyev 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 . Thus, in this thesis the problems of women to access legal abortion had been discussed as a problem of discrimination based on . 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 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

Bibliography

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 UDHR Universal Declaration on Human Rights

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 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 . But also because of the lack of access to health services (Singe r O., 2009, P. 3). In Mexico, the recognition of multiple reasons and circumstances behind a decision to interrupt 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

1 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 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 . 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 crimina ls. 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 wome n 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 crimina l 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?

3 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 equalit y, 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 marria ge , 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 crimina l 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 . The international instruments to which Mexico is a party includes The Universal Declaration of Human Rights, the Inter-Americ a n 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 theoretica l 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 representations in relation to crimes of abortion in the criminal codes.

2.1. Empirical Data

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The main focus in this thesis is a descriptive analysis on the Federal criminal code and the crimina l 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 crimina l 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 metho d 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 lega l 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-mak ing.

7 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 crimina lizing 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 , 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 informa lly 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.

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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 complicatio ns 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 historica l 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 crimina l sector had been highly critic ised 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 leve l 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 abortio n law. The 1931 Federal Criminal Code sets the standards for the regulation of abortion at the nationa l 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

11 women’s rights to contraception. A new reform (NOM-046-SSA2-2005) emitted by the Secretary of Health, establis hes 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 impossib le 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 interventio n. 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 definitio n 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 woma n 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 diminis hed to 3 moths up to 6 moths or 100 to 300 days of public works. Increased penalties were also established for those provoking 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 , 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

13 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 public ly 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 politica l 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 politica l event in Jalisco. This armed conflict raised in 1926 when Mexico initiated post-revolutionary liberal reformatio ns 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 interfer ing 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 simila r to the federal crimina l 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 integra l) if the woma n 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 crimina l 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 abortio n during the first five months.

15 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 lik e other Mexican state reflects the local political duality within which takes place. The abortion reform was introduced by the parliamentary group of the Partido Revolucionar io Institutional (PRI) together with the popular initiative to prohibit same-sex , 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 collaboratio n with religio us 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 permissib le 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/mothe rs.

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 permissib le 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 congenita l malformation, due to severe financial situations and when pregnancy is caused by artific ia l insemination. The types of abortion define the length and severity of punishments for acts of

17 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, includ ing 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 situatio ns 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, legis la tive 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 individ ua ls with the capability to decide over their sexuality, and pregnancy and abortion should be consensual.

4. The definition of Abortion at the International Level

In this chapter, a review on the international provisions on abortion will be presented includ i n g 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 childre n”. Reproductive health is also defined in the Cairo Action Programme 1994, adopted by 184 UN member states. The Action Program (Princip le 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.

19 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 Internatio na l 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 governme nt s 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 princip le of non-discrimination is also recognised in Article 1 of the American Convention of Human Rights. The American Convention Art. 1 prohibits discriminatio n 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 discriminatio n 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-mak i n g 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) interp r e t 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 attainab le

21 health. The Beijing platform (para. 94) also calls upon governments to review punit ive 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 , internatio na l instrume nts 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 sometime s 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 lega l 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 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 with the doctor and she was arrested for inducing abortion. The 30 November 2017 the Trial

23 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 crimina l 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 , 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.

25 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 differe nt. 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 situatio n 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 Crimina l 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-Americ a n court on cases of forced abortion and sterilisation. The judges concluded that the Conventio n 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 Offic ia l Public Record. And finally, the Tribunal require the District Court to conduct a furthe r 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 discrimina tio n on the basis of sex, in fact these theories allow to analyse the case of

27 women separately from those of men. Nonetheless, feminist theories are suitable to conduct this research on the law illustrating the pernicious effect sexist views have on women when they are embedded in abortion legislation. In this chapter, the basic premises and history of feminist theory is presented to provide the reader with more clarity what constitutes feminis m, different kind of feminist theories, their similarities and differences. Although, in this study theories are from the first, second and third-wave feminis m, which is also defined in this section.

6.1. The Premises and Development of Feminist Theory

The feminist movement has its origins in the Western world primarily in the United States and Europe dating back to the mid-nineteenth century to the beginning of the twentieth century. From the beginning, feminist discussions had been concerned with the marginality, invisibil it y and exclusion of women (Menkel-Meadow & Diamon, 1991, P. 221). The feminist movement had been classified in different periods of time mostly known as “waves”, illustrating the different feminist approaches leading to specific outcomes. First-wave feminist, is the first era in feminism that emerge from women’s struggle for basic legal rights, including right to vote and liberation from oppression. The second-wave feminism, which emerged in the 1960s to the 70s, advanced the first-wave feminism theoretical discussions analysing the origins of women’s oppression, the nature of gender and family structures. The, second-wave feminists focused to deeply understand the ways society understood women and how sexist views confined women to play specific roles in society. This movement focused on more radical reforms that granted women the right to education, marriage, property, etc. And the third-wave feminism, which build upon the idea of the previous two movements, influenced by postmodernist thinking tackle gender issues by questioning pre-existing ideas and perceptions about gender. Feminis t from this movement are mostly known for providing an analytical method questioning emotive language, symbols and images to which female characteristics and qualities had been associated. It can be said that feminist movements vary in purpose and characteristics (Krolokke C., Scott A., 2006, P. 1,2).

6.2. Sexual Reproductive Freedom and Differences in Feminist Theories

Discussions on was born as one core element in feminist theories in the nineteent h century, unlike any other issues feminism touches upon it emerged as part of feminis m movement, whose purpose was to challenge the subordination of women. The feminist bir th control movement prompted debate over women’s subordination, which advanced following the stages in feminism development. Feminist from the abortion movement challenged systemic sexism and discrimination against women, they argue that women’s subordination was the product of sexual repression. Both first and second-wave feminist sought that the law and customs defined by male supremacy reduced women to merely sexual and reproductive ends (Gordon L., 1996, 962). Nonetheless, feminist discourses on reproductive freedom developed in tow polarities; first, liberal feminists sought the issues of women to be product of unequal opportunities compared to men, and second radical feminists sought family structure to be designed by men to control over women. Accordingly, feminist theories imply that women can achieve birth control based on physiological differences or by holding equal status to men. The “sameness theory” suggests that men and women are equally equipped with decision-mak i n g capabilities, meanwhile the difference approach implies that the physiological capability of women to gestate should establish the basis for sex-based laws that protects the interests of women (Sauls V., 2016, 8-10). Liberal feminist theories do not reject existing structures, but rather claim women’s right to enter such a system. For liberal feminists, argues that women should be treated equally and have the same opportunities as men to reach their full potentials, thus this is based on an individualistic sense of liberty and freedoms. On the other hand, radical feminism highlights the importance of differentiating between men and women. This vie w emerges from the rejection of systems and structures understood as male supremacy used to subordinate women. Radical feminists also reject individualism, embracing women as a collective that patriarchal structure subordinate at all levels (Menkel-Meadow & Diamon, 1991, p221-225; Kerstin Berglund, 2009, P.14).

6.3. Liberal Feminism Gender Inequality

29 Liberal feminis m concept of freedom is defined in an individualistic basis claiming that women should achieve equality through their own choices and actions, thus personal autonomy is sought to be achieved in a pragmatic way. This branch of feminism holds that women can mainta in equality only as long as women are provided with equal opportunities and until wome n are presented in a fair way (Baehr, Amy R., 2018). Liberal feminism holds that women’ s subordination is legally enforced through laws and customs, sustaining gender hierarchies. Liberals believe that societies limiting women from choosing their government, to set out their terms in marriage contract lead to define women’s rights on a necessity-based orientation and as wives. Thus, from this point of view the struggles of women are encouraged by the arbitrary exercise of power based on notions of sex. Sameness liberal feminist theories claim that gender inequality is the result of one gender dominating over the other–men designing laws and customs regulating women’s life conditions (Satz, Reich R., 2009, P. 1,4 & Okin S., 1988, P. 1). According to Susan Okin, the problem of inequality is not the result of a well-planned order whose aim was to control over women, but rather the result of law and polity regulating women’s behaviour and characteristics analogous to men. Thus, the law is bias in the sense that judgements about men and women are embedded in moral codes. Okin, conceives laws as the platform to enforce dominance rather than to ensure rights and freedoms because it subjugates members of those considered weaker to live under the will of the strongest. In fact, the idea of law and order is sought been born out of anxieties of inferiority and superiority. Thus, methods of contemporary justice holding on traditional views subjugates and make the dominated to make sacrifices since they are compelled to obey the strongest (Okin S., 1988, P. 5).

6.4. Women as Immoral Agents

Early feminist movements challenged structural sexism and discrimination against women claiming, “voluntary motherhood”, that women had been subordinated in sexuality and that sexual repression of women had converted marriage in “legal prostitution/legal robbery”. Liberal feminist from the first-wave claimed that ensuring a woman’s right to decide over her own body was the way for women’s empowerment and sexual liberation. Feminist theories of this time conned voluntary motherhood in terms of privacy in a pragmatic way, women were seen victims of unequal opportunities whose full potential could not be achieved in a male dominated world. Thus, assigning women to specific household work and reproduction is linked to the sexualised ideas about women and their bodies. In fact, this liberal feminist thinking on sexual liberation of women led to women slowly started entering employment, education, to own property and to have more freedom in the marriage (Siegel R., 1991, P. 305). In a liberal framework the problems of women in abortion is the result of unfair laws , making exceptions for women based on physiological differences that limits them to have control over what happens to and in their own bodies. From a liberal point of view, the exclus io n of women then emerges from the limited foundation of the law to respect women as equal rational agents. Nonetheless, it is argued that the regulation of women’s body on their capability to gestate is the main reason women’s ability to decide over their pregnancies had been handled by public authorities and no the women themselves. For the same reasons it is said women had been send to jail, prosecuted and for the worst forced to give birth living foetuses even when a woman’s live is at stake (Purdy L., 1990, P.274).

6.5. Radical feminism Good vs. Bad Mother in Patriarchy

Radical feminis m rejects the individualistic right-based liberal theory, claiming that women’s autonomy had always been constrained in a world order reinforced by male supremacy. This branch of feminism provides an account for women’s subordination, that stems from the patriarchal structure affecting all women. This account goes beyond the biological or individualistic differences between men and women. It conceives the autonomy of women as stagnated in a patriarchal system since the definition of women, their sex and roles are defined based on preconceived ideas about womanhood. From this point of view the subjugation of women is systemic and detrimental to women’s self-realisation (Headley B., 2007, P. 9). Catherine MaCkinnon, states that gender hierarchies are constructed based on the sexualised “maleness/femaleness” where power equals masculinity. In fact, gender hierarchies with men at the top had been the major barriers for women’s self-realisation. Thus, the differences attached to the genders emerge from the dichotomous division between men and women, enforcing the dynamics of dominance and submission. Accordingly, in a sex discrimination law enforcing male supremacy the subject women are rather objectified and female uniqueness is confined with distorted sexualised representations. Thus, objectificatio n is the process through which realities and knowledge about female consciousness is crated and sustained. From a radical point of view, the subordination of women is not the unequal realisation of rights but rather the result of systemic and deliberated sexism created by men.

31 MaCkinnon argues that it is exactly through objectification women are robbed of their selfhood/womanhood in a patriarchal structure (MaCkinnon, 1983, P.636). State protective measure to regulate pregnancy had been accredited to perpetuate stereotypes about women’s capacity to make decisions. Thus, the immorality of abortion results from the idea that women that choose not to have children deviates from their roles as women, mothers and wives. Protective laws implying that women lack the capacity for making well- infor med decisions inevitably define women in a “good versus bad mother mode”. This divis io n between women also defines the good and bad qualities associated with them. Hence, laws capitulating upon morality of good and bad define women as uneducated, irrational and unable of decision-making. Nonetheless, these assumptions in protective laws is said to set the foundation for state intervention to regulate pregnancy since it is viewed to be the labour of women (Abrams P., 2015, P.185). Hence, it is said that positive subjectively attitudes towards women are detrimental for women’s reproductive health syncing women with specific roles in society. Thus, paternalistic ways women are told or thought about in a society hold ing romanticised ideas about women, not only marginalise women but also put their health at risk. Nonetheless, the perception of abortion and pregnancy based on the idolised ideas about women legitimates the regulation of pregnancy and the banning of abortion on the same basis. In effe c t idolisation then lead to allow abortion based on societal reasons and may then be permitted on a necessity-based framework. Finally, it can be said that in a patriarchal structure the women undergoing abortion are punished in two ways: one to live under conditions dictated by society constraining their autonomy to make decisions, and second by deviating from the norms created by society (Huang Y. et al., 2014, P. 2-3).

7. Analysis

This chapter discusses the presented material based on the theories from the two branches of feminism, which are liberal and radical feminism. These theories are placed together to gain perspective on the prohibition of abortion and the implication such regulations have on women. From this theoretical framework women’s right to abortion can be understood both in an individualistic as well in a collective sense. However, these theories provide a method to identify the types of discrimination and to the pernicious effect gender-based rhetoric has on women. As it can be seen liberal feminism applies to both liberal and restrictive abortion law, however radical feminism only applies to traditional laws and the representation of women.

7.1. Analysing Documents Federal Criminal Codes Arts. 329-332, Mexico City Arts. 144-146, Jalisco Arts. 227- 229 and Yucatán Arts. 389-392 7.1 .1. Liberal Feminism Theory

According to liberal feminism the problems of women are the result of unequal ways women are presented with to make life choices. In the realm of reproductive health then women’s subordination stems from the way law addresses specific problems of women. Another comment is that the laws hold societal views maintaining gender hierarchies that are harmful and impede them to realise their full potential. From this point of view laws are indeed metho d s use to subjugate the weaker under the will of the strongest in society. Looking into Mexico City’s abortion law Arts. 144-146 women are presented as moral agents capable of making decisions over the termination of pregnancy, it sees pregnancy as something that women know and take responsibility for. Thus, the rational capability of women becomes the basis for defining gestation as “the process of human reproduction when the foetus is implanted in the endometrium”. The definition of women as both capable to gestate and make well informed decisions the law defines abortion as the “termination of pregnancy during the first 12 weeks of pregnancy”. Recognising the autonomy of women and as equal to everyone else the statute establishes harsher penalties for those interfering with a woman’s pregnancy without consent. Nonetheless, penalties for women inducing abortion after 12 weeks are also based on the idea that women are capable to discern what is moral or immora l as establis he d by the law. Following this liberal feminis m logic, federal code Art. 331, Jalisco Art. 228 and Yucatán Art. 392 define abortion focusing strongly in the immoral acts of mothers as defined by traditional societal beliefs. It does not only include the immoral act of killing the foetus but also that sexual intercourse for women belong in the marriage. Thus, the consequences of pregnancy are seen as the major reason why women cannot engage in sexual relationship if they do not legally belong to a marital union. Women’s sexual repression is then based on the idea that women are made to reproduce and belong either to the family or to a man through marriage. The state’s intervention in the management of women’s reproductive health is legitimised by confining women to specific roles as mothers, wives and women. Yucatán Art. 389 further

33 specifies that women should be the “mother of at least three children to exercise legal abortion when overstrained by the burden of poverty”. Such a statement in the law recognised the idea of women as the primary responsible for childcare and the subsistence of the family. Furthermore, the law becomes arbitrary when women are subjugated to live and experience their sexual and reproductive life under unfair conditions. The gendered law then has pernicious effects upon women not only limiting them to become mothers voluntary but also because disempowered to make important life decision. The legal understanding of pregnancy is limited to a medical condition denying women’s control over their own bodies. The necessity-based abortion not only understand women’s health differe ntly, but it also empowers public authorities to decide for women. And criminal acts against women are only recognised in correlation to the pregnancy and not on their autonomy.

7.1.2 Radical Feminism Theory

According to radical feminism theory women it is not that women lack autonomy, but it is rather constrained by the patriarchal structure subordinating women collectively at all levels either it is in sexuality, employment or education. Thus, according to radical feminism law victimise and objectify women reducing them to merely objects in order for men to dominate over women. This theory holds that laws see women the same way men see women and that the definition of women enforces male supremacy. The sexualised and stereotyped ideas about women is said to promote the exercise of power and functions as a way to subjugate women under specific regulations. From this point of view abortion law encoded in the criminal codes largely portray women as irrational, untrustworthy and victims of violence, whose sexuality belongs to the man they marry to. This theory is more concerned with the portrayal and representations of women in the law. Hence, by portraying women as untrustworthy and irrational women’s right to exercise legal abortion are send under the radar of public authority, doctors and husbands. Federal code Art. 329, Jalisco Art. 228 and Yucatán Art. 392 establish penalties for women based on if they are bounded to a man or if they are single women. The offenses of women are punish based on the honour of their husbands when penalties for married women decrease based on that the woman belong to a marriage while for single women penalties increases. These justificatio ns according to MaCkinnon are the product of objectifying women. Nonetheless, the idolised ideas about women determine women’s access to justice and to health care since the criminality of abortion depends on the reason abortion is socially accepted. On the other hand, women having extra-marital sexual relationships are represented as promiscuous and of a bad reputation. Through the idolisation of women as mothers and as housewives the law confines women with reproductive morality and responsibilities. Then, the morality of wrong doing by women changes in line with societal views assigning women with specific roles in the marriage, the family and society at large. Furthermore, the law holding stereotyped views about women pregnancy is regulated in the basis that women are targets of violence but also victims of their own lack of discernment.

8. Conclusion

As the aim of this study was to both analyse the ways women are constructed in Mexican law and the effects such representations have on women and the way they are sanctioned for abortion. This study found that the abortion landscape in Mexico and problems of women can be better understood with a liberal feminist theory, in the sense that it provides a more suitable framework to understand the consequence discriminato r y laws but also to challenge it. However, radical feminism provided a deeper understanding on the representations of women as legal subjects and how it syncs women in a domination mode. The main findings in this study is that the reason law regulates pregnancy and prohibits abortion is guided by moral judgements of women. Defining women’s sexuality under marriage and family principles rather than on the idea that women unlike men has sexual and reproductive health puts women in a disadvantaged position. Thus, compared to laws decriminalising abortion recognising women’s capacity to make reliable decisions, traditional laws deny common human traits and abilities of thinking. It was also found that the ways women are conceived in the law leads to different punishments depending on the conditions they conceive and the circumstances leading them to abort. Furthermore, the chances for women to exercise legal abortion are very little because different definitions of abortion broaden up on subcategories of women and they can easily be sanctioned or denied abortion. These representations lead to unequal judgements of women not just compared to men but also between the women. women then enter the justice system and healthcare services under unequal terms depending where they come from and who they are.

35 Second, the representation of women in the law undermines women’s autonomy and right to exercise legal abortion. Thus, the sexualisation of women secures their place in the family, in the marriage or in prison but not to be let alone. As it could be observed, in the criminal code of Jalisco women are divided in two categories as married and single women whose reputation is confined as good or bad mothers. Also, by framing abortion as a necessity- based right woman are represented as the property of men in the sense that only with the consent of their husbands and the opinion of doctors they can have an abortion. Nonetheless, both Jalisco and Yucatán frames women that induce abortion either as uneducated and poor mothers. The integral treatments as penalty construct women as ignorant and as a reproductive vessel, whose responsibility is to sustain the family and satisfy the reproductive needs of their partners. It has been clear that established criminal sanctions for women are based on distorted representations of women, pregnancy and female sexuality. In conclusion, this research found that Mexican law reinforce stereotype views about women, which have pernicious effects on women’s right to be free from discrimination. In line with the liberal arguments this study found that the gender inequality in Mexico is the result of paternalistic rhetoric exacerbating women’s life conditions. The unequal treatment of women enhances gender gaps that are detrimental to the achievement of justice and female emancipation. However, radical feminism proved that the way women are portrayed in the law undermines their chances to exercise their autonomy and the arbitrary exercise of power interferes with their physical and psychological integrity. Based on these findings, this study suggests that Mexican states should revise their laws and incorporate modern concepts on human rights in order to achieve gender equality. Finally, this study also recommends the abolition of discriminatory law against women based on that Mexico as a signatory state of international human rights instruments has both negative and positive obligations to women.

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