By Prof Dr Gustavo Ortiz-Millán*
“Today is a historic day for the rights of all Mexican women. It is a watershed in the history of the rights of all women, especially the most vulnerable,”
Chief Justice Arturo Zaldívar said, after Mexico’s Supreme Court unanimously ruled that criminalizing abortion is unconstitutional. On September 7, the Court ruled that the penal code of the northern state of Coahuila, which set penalties of up to three years in prison to any woman who intentionally terminates her pregnancy, is unconstitutional. Mexico is a federal republic and each state has its own penal code, so abortion laws differ from state to state. But since the Court reached this decision through a qualified majority—a unanimous vote of ten justices, actually—its jurisprudence is mandatory for the whole country.
The justices argued that the criminalization of abortion stigmatizes, is discriminatory for women, affects the poorest and most vulnerable, and that access to safe abortion must be a right for all women. They adopted most of the arguments that the feminist movement has been using for years. Moreover, they were careful to specify this is a right that belongs to all “women and people with the capacity to get pregnant,” a clear inclusion of trans people who can also get pregnant.
The Court’s decision will be retroactive for any woman who is imprisoned for having an abortion. Women who have been imprisoned but have not had a trial yet will have to be freed immediately; those who have been sentenced already will have to appeal their sentence under the new rule.
Reproductive rights organizations estimate that some 700 women have been imprisoned in the country under the “crime of abortion.” However, it is hard to know how many women are in prison for this “crime,” since sometimes they are convicted under the charge of “kinship homicide to the detriment of an unborn child,” a complicated way of calling the killing of one’s own child. Additionally, under a context of illegality it is easy to blur the line between an abortion and a miscarriage. Reproductive rights organizations have found women serving time in jail who have been accused by healthcare personnel at public hospitals when they arrived with a miscarriage or an obstetric emergency. Physicians and nurses did not want to have any responsibility so they denounce these women. According to Verónica Cruz Sánchez, director of the reproductive rights organization Las Libres, based in the conservative state of Guanajuato, some 70% of all the women in prison have had miscarriages, not abortions.
This kind of persecution of women is a result of the strengthening of restrictive abortion laws in the country, after abortion was decriminalized in Mexico City in 2007. The conservative federal government of Felipe Calderón challenged this reform before the Supreme Court, but the Court upheld the law. However, there was a conservative backlash: 21 of the 32 local congresses amended their state’s constitutions, to establish the protection of human life “from the moment of conception.” Just two days after ruling the unconstitutionality of the criminalization of abortion, the Supreme Court also ruled that one of those amendments—that of the state of Sinaloa—was unconstitutional. One of the arguments the Court used was that an embryo is not a person, and therefore has no rights—although it is a legally protected good. These kinds of amendments are unconstitutional since they are opposed to national and international resolutions on women’s reproductive rights, the justices argued. Since 2011, Mexico reformed its federal Constitution to incorporate human rights standards, through the recognition of all the treatises on human rights that the country has signed. Once again, the jurisprudential effect of the Court’s decision is that all the 21 constitutional amendments must go, since they restrict the rights of women.
Up until the Court’s decision, most of the Mexican penal codes acknowledged three causes for legal abortions: rape, fetal anomalies, and risk to the mother’s life. However, these cases altogether probably account for less than 10% of all the reasons for having an abortion. Since it has been a clandestine phenomenon, it is hard to have studies on the reasons Mexican women have abortions, but studies done in the United States show that rape accounts for 1%, fetal anomalies for 13%, and women’s health for 12%. Furthermore, since abortion in Mexico is very negatively regarded (53% of Mexicans think that abortion should be illegal) and there is legal uncertainty for health care personnel, legal abortions are hard to access and are rarely officially practiced. Physicians, district prosecutors and judges obstruct women’s access to legal abortions as much as they can, so in many cases it is virtually impossible to get one. An illustrative example is the case of Paulina Ramírez, a 14-year-old Mexican girl who was raped in 1999 by an intruder to her house and was subsequently denied a legal abortion by state health and law enforcement officials; she was forced to have the child. According to Cruz Sánchez, there are no registered cases of legal abortions in Guanajuato, even when in the state there are estimates of thousands of illegal abortions. Women are systematically denied their right to a legal abortion.
The National Population Council (Conapo) estimates the number of abortions per year at 102,000. However, international organizations and NGOs estimate that between 500,000 and 1,700,000 abortions occur every year. Conapo also indicates that 17.8% of women of reproductive age currently have had an abortion. Whatever the real numbers, these data shows that restrictive abortion laws do not stop women from having an abortion; if these laws are intended to have deterrent effects, it is clear that they do not have them, since women have abortions anyhow. The effect that the laws do have is that they turn women who decide to have an abort to illegality: they resort to back alley abortions and, in many cases, they risk their health and life, given the unsafe conditions in which they are often carried out. Women who have abortions usually do so because they are desperate: so much is their willingness to terminate an unwanted pregnancy that they risk their lives, their health and their liberty. According to official data, abortion represents the third leading cause of maternal death in the country. In contrast, an abortion performed by a qualified physician under proper technical and hygienic conditions is a fairly safe medical procedure.
The Court’s decision is not an isolated event in the history of reproductive rights in Mexico. In a way, it is the result of the struggle that the feminist movement developed for more than thirty years: fighting for the recognition of women’s rights, introducing a gender perspective in issues of social justice and public policies, and introducing a feminist agenda in those processes. Since the beginning of the 1990s, Mexican feminists have created a number of women’s rights organizations and one of their main causes has been the decriminalization of abortion. Among the most important ones are those that integrate ANDAR (National Alliance for the Right to Choose). One of them, GIRE (Information Group on Reproductive Choice), works through comprehensive strategies that involve advocacy and legal casework. Through strategic litigation, they have been successful in getting women out of jail and in modifying laws in many states.
In the last few years the country has witnessed mass demonstrations, known as the “green wave” protests (after the green bandanas activists wear around their necks). These protests followed similar demonstrations that took place when Argentina first tried to decriminalize abortion in 2018, which the Argentinean congress ended up doing in January 2021. This “green wave” has also been inspired by the global #MeToo movement. In March 2020, the day before International Women’s Day, tens of thousands of women participated in mass demonstrations in some of the major Mexican cities to protest the rise of violence against women and femicides—every day 10 women in Mexico are killed. The next day, women went into a national strike to pressure the government to stop the culture of violence against women. The movement was promoted under the hashtag #ADayWithoutUs. Women were also protesting against restrictive abortion laws, which they see as part of a culture of machismo.
Since mid-2018, lawmakers in Mexico have filed more than 40 proposals to decriminalize abortion, according to GIRE. However, until now, only four states in the country had decriminalized elective abortion: Mexico City (2007), Oaxaca (2018), Veracruz and Hidalgo (2021). In the case of Mexico City, the ILE (Legal Termination of Pregnancy) program has been very successful. Women who are considering having an abortion first go through a counseling process where the abortion procedure and its possible risks are explained. During this counseling session, women learn about their options, one of them being carrying the pregnancy to term. At public hospitals and health centers, service providers have been instructed not to question women about their decision. Women have to sign an informed consent. The type of abortion procedure women receive is generally based on gestational age. Those at nine weeks gestation or less are offered medical abortion (drug-induced) and those over nine weeks are offered surgical abortion (MVA or EVA). Once these requirements are met, Mexico City residents can obtain an abortion at no cost (there is a sliding scale for out-of-state residents, averaging USD$85). For medical abortions, women receive instructions about how to take the misoprostol pills. Medical abortion patients are also required to have a follow-up appointment one or two weeks after the abortion to ensure its completion. After the procedure is done, women are required to receive information about contraception. The level of recidivism is very low, 5.3% of women have more than one abortion.
In 2007, when Mexico City began offering the ILE service, 88.5% of all obstetricians/gynecologists in public hospitals declared themselves to be conscientious objectors. The resulting shortage of trained personnel hindered the implementation of the program. Nowadays the program is guaranteed, since there are enough trained personnel. There are also several private abortion clinics that offer the service. Many more are expected to open with the new legal context.
However, now that abortion has been decriminalized in the whole country, the issue of conscientious objectors is going to be a problem once again. After abortion was decriminalized in Mexico City, conservatives in Congress presented several bills to modify the General Health Law in relation to the issue of conscientious objection. Although the right to interrupt a pregnancy in the city was guaranteed by law, they wanted that, in practice, there were no physicians to perform abortions. It was a way of obstructing women’s right to have an abortion. In 2018 a congressman from an evangelical party presented a bill and the federal Congress passed a reform that allows physicians to object in conscience to any procedure that goes against their principles, unless the life of the patient is at risk. With this reform, conservatives were not only reacting to the issue of abortion, trying to protect those who oppose abortion, but they were also anticipating that healthcare personnel may refuse to participate in other types of procedures that they may find objectionable for religious or moral reasons, such as assisted reproduction, contraceptive sterilization, prenatal diagnosis for eugenic purposes, among others.
However, the National Human Rights Commission challenged the constitutionality of this article, and once again—on Monday, September 20, just two weeks after their decision on abortion—the Supreme Court has decided that this article is unconstitutional, since it is “a blank check” thorough which healthcare personnel could deny health services, particularly the right to abortion. The article recognized an almost absolute right to objectors and left patients, mainly women, unprotected. Now the Court will give guidelines to Congress, which has to determine new measures of the law, acknowledging the right to conscientious objection without affecting the rights of women and people with the capacity to get pregnant. One of the most important conditions is that public hospitals must have non-objectors to provide the service that objectors refuse to provide.
In Mexico there are fewer doctors than there should be and many of them have spoken out against the decriminalization of abortion. If the State does not guarantee that there are non-objectors who perform abortions and restricts the right to conscientious objection, then the right to terminate the pregnancy will be a right recognized only on paper. Again, it would be the poorest and most vulnerable women who would suffer the consequences of this, since wealthy women are able to access private services for the termination of their pregnancies.
Another obstacle is the reaction of the Catholic Church, which has already spoken out publicly against the criminalization of abortion and has summoned its parishioners to massive demonstrations “in defense of life.” Although the Church has lost many followers in the country in recent years, it still has a lot of weight. Adverse reactions are also expected from the evangelical churches, which have an increasing presence in the country. President López Obrador, a devout Christian, has said that he will respect the Court’s decision. In the past, he has not committed to any position on abortion, arguing that he does not want to give rise to any confrontation. “If it’s already at the Supreme Court, then let it be resolved there,” he said.
What has been happening in Mexico in recent weeks is but the beginning of a long battle that still has to be fought. Women’s organizations working for sexual and reproductive rights are getting ready to present legal challenges to the denial of safe and legal abortion and to go to courts to start the trials that will get women out of jail. Public ministries could still prosecute women who have an abortion, although judges across the country are instructed by the Supreme Court not to bring any woman to trial for that cause. The decriminalization of abortion is not synonymous with legalization. The penal codes of each state would have to be reformed so that the criminalization of abortion disappears; advocates are planning to use the ruling to challenge laws. And this is not going to be easy: in the past, some congresses have disregarded the mandates of the Court.
The Supreme Court made history in Mexico: Clearly and forcefully recognizing women’s right to interrupt their pregnancies safely. This is a right that derives from constitutionally recognized rights, such as the rights to reproductive freedom, privacy, healthcare, equality and autonomy. A woman who is denied an abortion service can sue it as a reproductive health service. The protection of health is a positive right in Mexican law, so the State has an obligation to provide safe termination of pregnancy services in public clinics.
We are living a historical moment in which abortion is no longer regarded by the State as a crime and its starting to be recognized nationwide as a right. This is clear in Chief Justice Zaldívar’s speech after the session in which the Court decriminalized abortion in the country: “Now begins a new path of freedom, of clarity, of dignity and respect for all pregnant people, but above all, for women,” he said. “Today is one more step in the historic fight for their equality, for their dignity and for the full exercise of their rights.”
* Prof Dr Gustavo Ortiz-Millán is research-professor at the Institute for Philosophical Research, National Autonomous University of Mexico (UNAM). He holds a PhD in philosophy from Columbia University. He has published widely on bioethics and abortion.
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