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Paper Justice

In Mexico and Bolivia, laws allow women who have been raped to have abortions. Getting an abortion, however, is another matter entirely.

 

This spring in Bolivia and Mexico, controversy erupted in cases of two young girls who became pregnant as a result of rape. Though abortion is generally illegal in both countries, in the case of rape, the procedure is "unpunishable" in Bolivia and legal in Mexico. Despite the law, however, the girls, their families, and their advocates grappled repeatedly with local government and church officials on the issue-and only one of the two girls successfully exercised her right to terminate her pregnancy.

 

The Courage to Enforce the Law: Bolivia

 

A 12-year-old girl in Cochabamba, Bolivia, repeatedly raped and threatened by her stepfather, became pregnant late in the spring of 1999. By the time her pregnancy was discovered, the minor, whose name was not released, was approximately in her 15th week of gestation. The girl's family immediately sued for an abortion on the grounds of rape and the threat to the girl's physical and psychological health. Penal Judge Juan Luis Ledezma ordered the girl to undergo a gynecological examination and a forensic specialist to review the report. The family struggled to find a gynecologist willing to examine the child, and when the report was complete, the forensic specialist delayed the process even further. By the time Judge Ledezma made his decision, the minor was in her 18th week of pregnancy.

 

Abortion is illegal in Bolivia except in a few specific circumstances. Article 266 of the Bolivian Penal Code states that abortion is "unpunishable" in cases of rape, incest, statutory rape, abduction for sexual purposes not followed by marriage, and danger to the life or health of the woman, if there is no other option. Under such circumstances, the abortion must be performed with the woman's consent and judicial authorization.

 

At the time the girl's family brought their suit, only one legal abortion had ever been performed in Bolivia, though Article 266 has existed for 26 years. Because there are no regulations enforcing the article, and because a judicial order is required to obtain an abortion in such circumstances, the decision is frequently left solely to the discretion and beliefs of the presiding judge.

 

Judge Ledezma, who is Catholic, ordered the abortion to be performed at the Hospital Viedma in Cochabamba. "It seems to me that the concrete, present life must be protected if a potential life implies a risk to it," Ledezma said in an interview. However, doctors at the hospital refused to obey the judge's order on moral and religious grounds. Católicas por el Derecho a Decidir (Catholics for the Right to Decide) and other Bolivian women's groups petitioned other doctors to perform the abortion, and Judge Ledezma eventually gave permission for the minor to have the abortion in La Paz. Católicas por el Derecho a Decidir worked with other groups to raise money for airplane fare for the girl and her mother and for doctors' and hospital fees, and the girl obtained Bolivia's second legal abortion in March.

 

Ironically, despite Bolivia's legal prohibition against abortion and strongly Catholic populace (88.6% of the population is Catholic, according to the Catholic Almanac 2000), the country has an extraordinarily high rate of illegal abortion. A 1995 estimate calculated between 40,000 and 60,000 clandestine abortions-up to 115 per day-are performed per year in Bolivia by doctors, medical clinics, and others . Studies have shown that between 20 percent and 50 percent of all Bolivian women of reproductive age have undergone at least one induced abortion. Bolivia's maternal mortality rate is 650 women per 100,000 live births, the worst maternal mortality rate in Latin America after Haiti. One-third of these deaths are caused by induced abortions.

 

In an interview with the English-language newspaper, The Bolivian Times, Javier R. Celiz, the attorney for the girl and her family, berated medical officials in Cochabamba for the discrepancy between the law and reality. "When it's a matter of interrupting a pregnancy in a public case, people beat their chests and say, 'how can one end a life?' But every doctor you go to practices abortion. Everybody knows it," said Celiz.

 

Following the abortion, the church roundly condemned those involved. A spokesperson for the La Paz diocese said that Judge Ledezma "should consider himself excommunicated in the event that he does not repent." Teresa Lanza, director of Católicas por el Derecho a Decidir, said that church officials' ire extended further. "They have declared all of us-the judge, the anonymous La Paz doctor, and those of us who supported the girl and her family-excommunicated, and church leaders said they will take legal action against the judge," she said. Given the thousands of abortions that take place in Bolivia, Lanza said, this strategy seems futile at best. "Can you imagine how many doctors and other people would be excommunicated and face legal action? What percentage of the population would that be?" she asked.

 

The Tragedy of Paulina: Mexico

 

Paulina, a thirteen-year-old resident of Baja California, a Mexican state on the border with California, was raped by a heroin addict who broke into her family's home to rob them. About three weeks later, the family's doctor discovered the pregnancy and immediately advised Paulina and her mother that the teenager had the right to a legal abortion.

 

Though abortion is generally prohibited in Mexico, each of the country's 31 states permit abortion in the case of rape, and some permit abortion in cases of fetal malformation or to preserve the life of the woman. Baja California's ruling party, the National Action Party (PAN), is socially conservative with very strong ties to the Catholic Church. As in Bolivia, however, Mexico's strongly Catholic population and stringent legal prohibitions against abortion do not translate into a society free of abortion. Estimates of the number of illegal abortions in Mexico range from 200,000 to 1,500,000 per year . Induced abortions are the fifth most common cause of maternal death in Mexico .

 

Paulina's mother requested an authorization for the procedure from the state prosecutor's Special Agency for Sex Crimes. The state prosecutor's office ordered the Director of Mexicali General Hospital to perform the abortion. The girl was admitted to the hospital, where she remained for seven days without having the operation. The director of the hospital, Dr. Ismael Avila Iñíguez was subsequently detained by the state prosecutor's office for refusing to comply with the order. Iñíguez agreed to schedule the procedure, but one doctor at Mexicali General resigned and all the rest refused to perform the operation.

 

In the interim, Paulina, who had been readmitted to the hospital, was visited twice by two women who claimed to be state social service workers sent by the hospital. The women allegedly showed the minor pictures of aborted fetuses, attempted to dissuade her from having the abortion and threatened her with excommunication. The state social services office later denied having sent any workers to the hospital.

 

Paulina was again released from the hospital, and her mother took her case directly to the state's highest justice official, Attorney General Juan Manuel Salazar Pimentel. The attorney general, appointed by the PAN governor, attempted to talk Paulina and her mother out of the procedure. Despite their protests, he then drove the girl and her mother to his church, sat with them through Mass and left them alone for a meeting with his priest.

 

Eventually, realizing that Paulina and her mother would not be deterred, Salazar authorized the abortion and the procedure was scheduled. However, minutes before the operation was to take place, Dr. Iñíguez gave Paulina's mother such dire warnings about the procedure's potential side effects and complications-such as fatal hemorrhaging or sterility-that she refused to sign the medical authorization. The abortion was called off. "I thought it was better for my daughter to have the baby than to die,' said the girl's mother. "Probably nothing would happen to her, but if everyone was so angry about the operation, maybe the doctors would do it badly on purpose," she added.

 

The case sparked a furor among women's and human rights advocates in Mexico. "The government used public health facilities to make this girl a captive to advance their agenda," said Maria Consuelo Mejía, director of Católicas por el Derecho a Decidir (Catholics for the Right to Decide) in Mexico. "The failure of the Mexican system to uphold the law in this case makes it apparent that public officials are putting their own moral beliefs over the law," she said. Within ten days of the family's withdrawal of their petition for Paulina's abortion, Alaíde Foppa, a human rights group, had filed complaints with the state office for human rights alleging that Paulina's human rights had been violated.

 

After reviewing the case, the office recommended that a trust fund be created for Paulina and her child to cover medical expenses, food, clothing, and "all the costs of care;" that administrative or penal proceedings be initiated against the doctors, the hospital officials, the attorney general, and the representative from the State Prosecutor's Special Agency for Sex Crimes; that Paulina's medical expenses be liquidated; and that medical ethics, medical law and human rights training courses be incorporated into the state health system. The state government rejected the recommendations, however .

 

Paulina gave birth to a boy in April 2000. The church and a local antichoice group paid for some of the costs of the birth, but no further aid has been given to the girl and her family. Following the birth, Rafael Romo Muñoz, bishop of Tijuana, demanded that Mexican law be revised to outlaw all abortions, regardless of circumstance. The vicar of the Mexicali diocese called for excommunication of the activists who advocated for Paulina in favor of abortion. "We don't think that there is a God who would will such a thing," said Mejía. "Why don't they excommunicate the rapist? They have said nothing about the rapist," she added.

 

In May, priests in Mexicali refused to baptize the child because Paulina and her family had chosen Silvia Reséndiz, one of the directors of Alaíde Foppa and an earnest advocate for Paulina's rights, as the godmother. Members of the clergy said that Reséndiz would have to disavow her prochoice beliefs to become the boy's godmother.

 

Since the uproar, CDD and other women's and human rights groups in Mexicali and other states have collaborated to educate the community about women's rights. A poster reading "In case of rape, abortion is legal" was created for public health centers, but, Mejía says, the Institution of Social Security, which is responsible for the facilities, refused to display the poster.

 

Tegan A. Culler is associate editor of Conscience.

 

 

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