By Asjylyn Loder
Friday, March 8, 2002
In 1999, a 13-year-old Mexican rape victim was intimidated out of getting an abortion. Now advocates want to take her case to international court, arguing that impeding a woman's access to a legal abortion violates her human rights.
(WOMENSENEWS)--The international institution charged with monitoring human rights in the Western Hemisphere is expected to receive a petition today contending that impeding a woman's access to a legal abortion is a violation of her human rights. If the Inter-American Commission on Human Rights admits the petition for consideration, it will be the first time that the group treats access to abortion as a human rights issue.
The petition was filed by the Center for Reproductive Law and Policy, the Mexican women's group Epikeia and attorney Soccorro Maya on behalf of Paulina del Carmen Ramirez Jacinto, a 13-year-old Mexicali girl who was impregnated by a rapist, then intimidated out of having a legal abortion by hospital and government officials. The petition does not argue that abortion is a human right and should be legal in all cases, but that effective access to an abortion already permitted by law is a human right.
"This really isn't an abortion case," said Rebecca Cook, professor of human rights and international law at the University of Toronto. "This is really a case of women's access to care to which they are legally entitled."
In addition to compensatory damages for Paulina, the petition seeks amendments to the Mexican penal code establishing protocols for government and medical personnel confronted with victims of sexual violence.
If the case is admitted, the commission, which is overseen by the Organization of American States' Charter, can either reach a "friendly settlement" with Mexico or, failing that, refer the case to the Inter-American Court on Human Rights. The decisions of the court are legally binding, while Mexico must only make its "best efforts" to comply with the international commission's recommendations.
Paulina's case provides a template for women's rights advocates wishing to bring cases before the commission. But it also delineates the limits of the commission when it comes to implementing international conventions in countries such as Mexico, where powerful social and religious norms work against the expansion of sexual and reproductive rights.
Successful petitions in cases of sexual violence have increased, but petitions on issues related to sex education, abortion and emergency contraception have languished.
"There haven't been that many cases along these lines, but that is changing," said Dr. Juan E. Mendez, director of the Inter-American Commission on Human Rights. The commission has issued only one opinion on an abortion-related case in the last 20 years, Mendez said.
The petition is expected to be filed the same day (recognized worldwide as International Women's Day) that the special rapporteurs on women's rights at the Inter-American commission, the United Nations and the African Commission on Human and Peoples' Rights released their first joint declaration. The document reaffirms those bodies' commitment to women's rights and notes that "while the international and regional communities have established standards to prevent, punish and eradicate violence and discrimination against women, many states have yet to take the steps necessary to implement these standards in domestic legislation and practices."
While the international commission has no legal jurisdiction over U.S. policy, the petition about the denial of legal medical care sets an important precedent for women in the Central and South America, where abortion remains severely restricted and clandestine. Abortions rank as one of the leading causes of maternal mortality. A blanket abortion ban is still in place in Colombia, El Salvador and Chile. Other countries ban abortion except in cases of rape, incest or to protect the life of the pregnant woman. Even where those exceptions exist, women rarely benefit from them.
In Bolivia, for example, only one legal abortion has been performed in 26 years despite statutes that allow for abortion in cases of rape, incest or significant health risk for the mother. In Peru, a woman was recently ordered to carry an encephaletic fetus to term because the pregnancy presented no threat to her physical health. Doctors predict that, because the fetus has no functioning brain, the infant will be unable to breathe outside the uterus and die minutes after birth.
In Mexico, clandestine abortions account for most of the estimated 1.5 million abortions performed each year. Abortion is ranked the fourth leading cause of maternal mortality. The United Nations has stated that the high maternal mortality rate violates pregnant women's right to life.
Abortion is permitted in Mexico in cases where the mother's health is in jeopardy, there is fetal malformation or the pregnancy is a result of rape. In a 2000 report, the Center for Reproductive Law and Policy found, however, that "there are no legal or institutional mechanisms for women to benefit from these exceptions."
The Mexican penal code only says that "women would not be punished in cases of rape," said Luisa Cabal, staff attorney for Latin America for the center for Reproductive Law and Policy, "but there was no process."
The Paulina Case, as it has come to be known in Mexico, began on July 31, 1999, when two men broke into the home of Paulina's sister and the girl was raped in front of her 2- and 5-year-old nephews while her sister lay bound and gagged on the floor.
"He started putting his penis in my vagina even though I told him he was hurting me," Paulina testified. "He kept poking me with the knife so I would keep my legs open."
The doctor that examined Paulina after the attack confirmed that Paulina had been raped and that she had been a virgin prior to the rape. When Paulina discovered three weeks later that she was pregnant, the medical report made a critical legal point: Paulina's pregnancy could only be a result of the rape. An abortion would therefore be legal in her case as long as it was performed before the end of her first trimester.
When Paulina and her mother, Maria Elena Jacinto Rauz, went to the state prosecutor's Special Agency for Sex Crimes to obtain authorization for Paulina to terminate her pregnancy, a back and forth between the prosecutor's office and the state hospital ensued that Paulina contends was designed to run out the time that she had in which to have the abortion.
At one point, Mexicali General Hospital held Paulina for seven days without performing the abortion. The prosecutor, Norma Alicia Velazquez, threatened the hospital director, Dr. Ismael Avila Iniguez, with 48 hours in jail if he failed to comply with the abortion order and Paulina was released.
In later testimony, Paulina and her mother alleged that the state attorney general, Lic. Juan Manuel Salazar Pimentel, took Paulina to a priest who threatened her with excommunication. During another hospital stay, two women who claimed to represent a government agency forced Paulina to look at pictures of mangled fetuses.
Finally, moments before the abortion was scheduled, Dr. Iniguez told Rauz that the procedure could cause sterility or a fatal hemorrhage. Fearing for her life, Paulina withdrew--and her mother consented that it be withdrawn--her request for an abortion.
"They forced me to waive my daughter's right to abortion," said Rauz in a statement to the Tribunal for Administrative Conflicts in Baja California. "They did not care that they gave me manipulative, partial or fatalistic information violating my right and my daughter's right to information and to her right to choose to reproduce in a free, responsible and informed manner."
For the human rights commission to admit the case, it must first be satisfied that the petitioner has "exhausted local remedies," or pursued every legal avenue available in Mexico. Lawyers for the Mexican government will likely pursue this line of defense aggressively, said officials within the Inter-American system who are familiar with Mexican law.
Mexico is expected to argue that Paulina should have sought an "accion de amparo," or writ of protection. The petitioners counter that, because Paulina was never explicitly denied an abortion, she had no reason to seek an the writ.
In addition, the petitioners contend that Paulina did not have time to pursue other legal remedies. By the time Paulina withdrew her request for an abortion, she had only two weeks before the end of her first trimester.
"In the case of Paulina, she was denied effective and timely means. She was coerced into carrying the pregnancy to term," said international law professor Cook. "The facts speak for themselves. She had the child."
During her pregnancy, Paulina and her mother did seek redress from the Baja California State's Law Office for Human Rights and Citizen Protection, which recommended investigations into Pimental, Iniguez, Velazquez and others. It also recommended that reparations be made to Paulina for her hospital bills, prenatal care and "all the costs of care of Paulina and the baby she is about to give birth to, until they have the means to sustain themselves." It also recommended instituting protocols to better handle similar cases in the future.
The State of Baja California, long dominated by the conservative National Action Party, known by its Spanish acronym PAN, rejected the recommendations, claiming that Paulina voluntarily withdrew her request for an abortion.
Women's rights advocates said they now worry that any decisions of the commission could be similarly resisted by President Vicente Fox, who ran as a PAN candidate. Despite Fox's vocal commitment to the advancement of human rights, he might be unwilling to openly oppose his party if the Inter-American commission makes recommendations similar to those made by the Mexico's Office of Human Rights and Civilian Protection, said several people involved with the case.
One of Paulina's attackers is in jail for rape. Paternity tests have found that he is not the father, leading anti-abortion activists to accuse Paulina of lying. The other alleged attacker is a fugitive.
Pimental denied that he took Paulina to see a priest. Iniguez was jailed for three hours for failing to comply with the prosecutor's abortion order. Iniguez later termed himself a "conscientious objector." The two women who visited Paulina's hospital room have not been identified. Velazquez was found to have complied with the penal code section regarding abortion.
Paulina is now 16 years old and her son, Isaac, is 2. Paulina's mother is raising Isaac in Mexicali. In newspaper interviews, Paulina has said that she loves him "like a brother"--and that she wants to be a lawyer when she grows up.
Asjylyn Loder is a freelance writer living in New York.
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