With the decision of the Supreme Court of Justice of the Nation (SCJN) to declare the criminalization of abortion unconstitutional, judges in Mexico are obliged to consider that the penal norms of the States that criminalize abortion are unconstitutional.
This resolution contributes to the obligation that judges will have from now on not to criminalize women, considered Natalí Hernández, director of the Center for Analysis, Formation and Social Initiative (CAFIS, AC).
In an interview with Poblanerías, the also founder of the campaign for access to legal and safe abortion in Puebla, said that the Court's ruling is historic and although it does not immediately force the release of women prosecuted for abortion, it opens the possibility for appeals to be promoted in their favor.
“It seems to me that in this sense, the Congresses have a clear message that, from now on, they cannot legislate against what the Court has just ruled; and they are obliged, under the principle of progressiveness that the Human Rights and the Constitution mark, to reach the resolutions that the Supreme Court has given in this case", she said.
Articles that will be unconstitutional
Since the Court ruled that it is unconstitutional to establish a prison sentence for anyone who performs an abortion or who causes an abortion to be performed, the articles that indicate criminal penalties shall be null and void.
Currently, Article 339 of the Puebla penal Code states that abortion is: "the death of the product of conception at any time during pregnancy".
This article establishes penalties of six months to one year of imprisonment for a mother who voluntarily procures her abortion or consents to another person causing her to have an abortion.
In addition, Article 341 of the same Code establishes penalties of one to three years for physicians, surgeons or midwives who cause a woman to have an abortion.
For now, and according to article 343, in Puebla abortion is not punishable if it is for the following causes:
- When it is caused only by imprudence of the pregnant woman.
- When the pregnancy is the result of a rape.
- When, if the abortion is not induced, the pregnant woman would be in danger of death, in the judgment of two physicians
Women prosecuted for abortion
Natalí Hernández stated that, in order to address the Court's ruling, the lawyers of the women facing the crime must begin to promote the necessary resources to achieve their freedom.
"Women prosecuted for abortion, under the Amnesty Law or now with this new resolution, would have to go through a process of being pardoned or exonerated. However, it is complex because many times this information does not reach the women who are sentenced for these crimes and it is them, or their lawyers who would have to start promoting appeals," she stated.
Based on information request 00177019 made to the Superior Court of Justice of the State of Puebla (TSJE), she said that from 2009 to 2019, 11 women were sentenced for the crime of abortion.
While, from January 2019 to June 2021, there is a record of 14 women, according to information from the State Attorney General's Office.
In August 2019, Miguel Barbosa Huerta, governor of Puebla, signed a decree for the pre-release or indult of women imprisoned for abortion.
Months later, in April 2020 she stated that five women could be beneficiaries of the Amnesty Law for the State of Puebla; she later said there were only two cases, without specifying whether the rest had been released.
Decriminalizing abortion in Puebla
For Natalí Hernández, this decision opens the door to discuss the decriminalization of abortion in Puebla, after the failed promises and lack of political will by the current Legislature.
He said that there are no longer arguments to sustain that the codes that sanction abortion have to remain as they are.
"No one can challenge the decision of the Supreme Court of Justice of the Nation, nor can anyone issue higher judgments, because the highest court has sent a clear message to the local Congresses and will thus determine", he said.
Congressmen signed a series of agreements in December 2020 with feminist collectives, after 25 days of the occupation of the congressional facilities. These commitments established, among other things, the discussion and vote on legal abortion no later than April 2021.
The deadline arrived and the legislators did not discuss in the Plenary. Instead, an Open Parliament on Sexual Rights, Reproductive Rights and Legal Abortion was held from April 5 to 20, where the reasons why it should and should not be legal were discussed.
But, after the Parliament no further information on the discussion of the issue was given in the plenary. It was until June 16, when deputies Rocio Garcia Olmedo and Estefania Rodriguez Sandoval presented -again- a series of new initiatives in the matter of decriminalization of abortion, but they remained in "the freezer".
Read it in Spanish here.