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Civil rights… if you can get them: Same sex marriage and abortion

7 April 2014

(Sombrero tip to Patrick Timmons)

Julio Salazar and Eduardo Piñón are the first same sex couple to be married in Cd. Juarez, the second such couple to contract a marriage in the State of Chihuahua… where the legal code defines marriage as:

…el acuerdo de voluntades entre un hombre y una mujer para realizar la comunidad de vida, en donde ambos se procuran respeto, igualdad y ayuda mutua, con la posibilidad de procrear hijos de manera libre, responsable e informada.

(…the voluntary agreement between a man and a woman to form a community for life, with respect, equality and mutual assistance, and with the ability to bear children in a free, responsible and informed manner).

Photo:  José Luis González, Nortedigital.mx

Photo: José Luis González, Nortedigital.mx

We’re in this weird situation in Mexico where just because something is legal doesn’t mean you don’t have to prove it’s legal.  Federal courts in Mexico consistently rule marriage codes like that in Chihuahua violate of both the constitutional guarantees of equality of gender, as well as equality regardless of physical ability (like bearing children).   And, since the constitution here guarantees the right to family planning, the ability to bear children is irrelevant to marriage.

However, unlike the United States, it would be unusual — if not impossible — one is only guaranteed the right to “struggle” for one’s own rights, or one’s rights as part of a class.  Which means, right now, the only same-gender marriages you are seeing outside of the Federal District and Quintana Roo (both of which explicitly allow for same-gender marriage in their civil codes) is if you have enough money to sue the State… and the persistence to follow the case through the Federal Court.

Sterling Bennett wrote this week about another right that exists more in theory than in practice and which can — and does — lead to more immediate consequences than a delay in legal recognition of a relationship.

indexIn 2007, the Federal District changed its criminal code to strike down any penalties for first trimester abortions.  Upheld by the Supreme Court, seventeen states criminalized the procedure… including in most, provisions that allow the woman who had the abortion to be imprisoned.  The situation is even more confusing in that all but three states permit abortion under some circumstances, with one state (Yucatan) adding  “economic necessity” to the usual list of rape, risk to the mother, or fetal deformity”  … while in a few, especially Guanajuato, women have been imprisoned for either seeking an abortion, or having a “suspicious” miscarriage (suspicious in the minds of the state ministry, anyway).  As Jo Tuckman wrote in the Guardian soon after the Federal District’s more lenient abortion law was upheld by the Supreme Court (and before there was a rush to add “life begins at conception” to a number of state constitutions):

The laws of most Mexican states allow terminations in cases of rape, risk to the mother’s life or severe foetal deformities. In practice almost no states offer abortions in such cases. However, nor do they prosecute the doctors who offer safe illegal abortions or the cheaper life-threatening backstreet practitioners.

One needs to add that alternative (and technically illegal) first trimester abortions are often openly advertised (as treatments for “late menstruation”) and that in U.S. border states with restrictive abortion laws, like Texas, women of limited means go to Mexico for legal means to terminate their pregnancy, that are not considered abortions, and not covered under existing laws here).

Constitutionally, no state can have a more severe penalty than any other state for the same kind of crime.  But… with abortion NOT a crime in the Federal District, and with that constitutional provision guaranteeing the right to family planning, Federal Courts do uphold the rights of (in this instance) the defendant.

HOWEVER… as with same-sex marriage in states that do not permit such… the problem is getting an amparo.  It takes a lot longer than three months, and for women who have been jailed, it’s a matter of finding a lawyer, being able to hire a lawyer, and sitting out their sentence until their case comes before the judge.

Both the anomalous situation with same-sex marriage laws and with abortion laws unfairly affect the poor.  That the Constitution also guarantees equality before the law regardless of “social condition”… which, I suppose means, ability to hire a lawyer.  Which it would take hiring a lawyer to get to court to enforce the provision.

 

 

 

 

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