Mexico Supreme Court: Abortion denied to rape victims violates international human rights and constitution

by Jennifer Paine, GIRE

In April 2018, the Suprema Corte de Justicia de la Nación unanimously voted in favor of two separate cases (“Marimar” and ”Fernanda” ) where a woman or girl who became pregnant due to rape was denied access to a legal abortion. Both victims received legal support from GIRE, a Mexican organization that provides information on reproductive choice.

Both rulings recognized that denial of a legal abortion after rape constitutes a violation of reproductive rights. This is important because abortion after rape is legal in all 32 Mexican states. The federal “Victim’s Law” allows a raped woman or girl to access abortion at any public health center. Modified in 2016, the law’s content is now taken directly from international treaties. For example, the law does not require court authorization, filing of a police report nor parental consent for minors over age 12. Abortion care under these circumstances is defined as “emergency medical services.”

The Court used constitutional and international law to support its rulings. The first article of the Mexican Constitution states:

. . . all individuals shall be entitled to the human rights granted by this Constitution and the international treaties signed by the Mexican State, as well as to the guarantees for the protection of these rights. Said human rights shall not be restricted or suspended, except for the cases and under the conditions established by this Constitution itself.

The provisions relating to human rights shall be interpreted according to this Constitution and the international treaties on the subject, working always in favor of the broader protection of people.

The second ruling discussed the important role of the Federal Executive Committee:

…The Committee should place sufficient emphasis so that the corresponding comprehensive reparations establish guarantees of non-repetition that eradicate the serious human rights violations such as those in the present case, in that all types and levels of authorities should treat requests for the termination of pregnancy after sexual assault effectively, immediately and without objection, privileging the rights of all women who have been victims of cruel and inhuman acts such as sexual assault; these authorities should be aware their action of carrying out the legal termination of pregnancy is derived not only from secondary law, but from the compulsory observance of constitutional mandate. ( “Fernanda” ruling, pp 32-33)

In international law, the Case of Paulina Ramírez Jacinto against Mexico  resulted in a friendly settlement agreement before the Inter-American Commission on Human Rights in 2007, undoubtedly supported the conceptualization of the rights that had been violated, given that the facts in both 2018 cases were very similar to Paulina’s experience, especially the denial of a health service that State is obligated to provide.

In addition, this international precedent helped to underline that Mexico has long had serious problems in complying with its obligations related to abortion services for rape survivors. Although the legal and normative framework has been improved to eliminate the former obstacles, these two cases show that the framework has not been implemented in practice.

The first case, which GIRE began defending in 2016, concerned a minor known as “Marimar”.  This victory represents the first-ever Mexican Supreme Court ruling regarding the denial of a woman’s legal right to access abortion.  Abortion had been discussed previously by the Court, but always as an element of a law or policy.

Marimar’s long road to justice began after she was raped in November 2015 when she was 17 years old.

In her efforts to secure a legal abortion, Marimar was forced to confront endless bureaucratic delays, discrimination and unnecessary barriers from authorities, after which she was ultimately denied a legal abortion. Along with GIRE, Marimar and her mother filed a legal stay for the cruel and inhumane treatment to which she was subjected in the hospital. The Collegiate Court in charge of resolving the stay determined that this case was of special relevance and requested Supreme Court review, thus leading to its acceptance by the Supreme Court and the eventual positive ruling.

The second case was for Fernanda, who was raped by an acquaintance and became pregnant in 2016. Fernanda repeatedly requested access to an abortion from the Oaxaca health sector, but the hospital was on strike and did not do anything but acknowledge receipt of her requests. Thus Fernanda, like Marimar, was denied access to abortion care.

Though these rulings are positive, and the two young women received justice, it is important to recognize the physical and emotional turmoil to which the women were subjected by authorities, in total disregard of their legal obligations. It is also important to note that these two cases are not isolated incidents. According to a report from the Executive Commission for Attention to Victims (CEAV), one in four girls in Mexico is sexually assaulted before age 18, and the majority of pregnancies in girls under age 14 are the result of rape.

Still, women and girls who become pregnant as a result of a rape are routinely denied access to legal abortion in the country. According to official data from the National Public Security System, from 2009 to 2016, state public prosecutor offices and the national Public Prosecutor’s Office received 111,413 reports of rape.  There is no reliable data on how many rapes resulted in pregnancy, but the the federal and state health departments report having carried out only 63 legal abortions under this indication during the same period.  (GIRE, Violencia sin interrupción, p. 8)

These two recent rulings are important victories in the fight for reproductive justice in Mexico. With the Supreme Court’s decision, it is now established that a woman or girl’s human rights are violated when she is denied access to a safe and legal abortion after rape. This aligns with United Nations reports condemning lack of access to abortion as a form of torture. The cases also set a precedent for the entire country, empowering survivors of rape with knowledge that the Supreme Court is on their side.

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