In response to legal action taken by a women’s rights organisation, on 6 September Mexico’s Supreme Court declared the Federal Penal Code articles criminalising abortion unconstitutional. The decision effectively decriminalises abortion and forces federal health institutions to provide access to anyone requesting the procedure. Mexican feminist groups will continue to push for changes in state laws in the 20 out of 32 states that still have legislation criminalising abortion. They’re also now turning towards monitoring compliance to ensure that resistance in bureaucracies and medical institutions doesn’t present barriers against access, particularly for people from excluded groups.

Women’s rights are under assault in the USA, but progress came south of the border on 6 September, when Mexico’s Supreme Court declared abortion bans unconstitutional. The decision effectively decriminalised abortion throughout the vast federal country, so far characterised by a legislative patchwork.

The recent Court ruling marks a before and after in the struggle for reproductive justice, and it would not have been possible without the tireless commitment of feminist movements at local, national, regional and global levels.

BRENDA RODRIGUEZ

The ruling came in response to an amparo appeal – a writ for protection of rights – filed by civil society organisation (CSO) Information Group on Reproductive Choice (GIRE). It forces the Federal Congress to repeal the Federal Penal Code articles that criminalise abortion. Effective immediately, the decision means that those seeking abortions and those providing them can no longer be punished for doing so. The ruling also guarantees the right to access abortion procedures in all institutions of the federal health system network, which serves most people, even in states where the crime of abortion remains on the books.

VOICES FROM THE FRONTLINE

Brenda Rodriguez is communications coordinator at GIRE, a feminist and human rights organisation that has been working for almost 30 years so that Mexican women and others with the capacity to bear children can exercise their reproductive rights.

 

The recent Court ruling marks a before and after in the struggle for reproductive justice, and it would not have been possible without the tireless commitment of feminist movements at local, national, regional and global levels, of which GIRE is a part.

The cultural change driven by the feminist movement throughout the Latin American region has been key to advances in pro-choice regulation and social decriminalisation and access to abortion as a health service.

GIRE has worked for the right to choose for over 30 years, during which time it has worked hand in hand with decision-makers, the media, public opinion and many organisations and collectives. The road travelled has resulted in a strong network on all fronts that has socially decriminalised abortion on the basis of the recognition of reproductive autonomy as a right.

Our work has been comprehensive. We have produced reports on the state of abortion rights in Mexico and made specific recommendations to ensure that access is guaranteed as a health service. We have carried out public policy advocacy and supported cases challenging human rights violations caused by the denial of the right to abortion. Our communications work has also been key, helping us place the issue of abortion on the public agenda, contributing to its social decriminalisation. So although there are never guarantees that backsliding won’t occur, we currently have the advantage of a very pro-choice public opinion.

The strategy to repeal the crime of abortion at the federal level kicked off two years ago. In September 2021, in response to an action of unconstitutionality against the penal code of the state of Coahuila, the Federal Supreme Court unanimously declared that the absolute criminalisation of consensual abortion is unconstitutional. In September 2022, based on this precedent and as part of a legal strategy to eliminate the crime of self-procured and consensual abortion from all criminal codes, GIRE filed an appeal for legal protection against the Federal Congress and executive for having issued a regulation that criminalised consensual abortion.

It was in response to this amparo appeal that the Court reiterated that the absolute criminalisation of abortion violates the human rights of women and pregnant people.

 

This is an edited extract of our conversation with Brenda. Read the full interview here.

A legislative patchwork

The trend towards decriminalisation kicked off in 2007 in Mexico City, and it took 12 years for Oaxaca to follow its lead. Change accelerated in recent years, with two states, Hidalgo and Veracruz, legalising abortion in 2021.

In September 2021, the federal Supreme Court issued its first-ever decision on abortion rights, unanimously recognising a constitutional right to safe, legal and free abortion services within a ‘short period’ early in pregnancy, and on specific grounds later. The ruling came in response to a lawsuit against Coahuila, a northern state that borders Texas, which imposed prison terms of up to three years for voluntary abortion.

Although this ruling only banned the state of Coahuila from criminalising people who had abortions, it had a wider impact: in other states judges were no longer able to sentence anyone for the crime of voluntary abortion in the early stages of pregnancy.

By the time the Supreme Court issued the Coahuila ruling, only four federal entities allowed abortion on demand up to 12 weeks. But several have changed their laws since, the latest being Aguascalientes, where decriminalisation came barely a week before the latest Supreme Court ruling.

By then, abortion on demand was legal in 12 of Mexico’s 32 states. All 32 states also allowed abortions for pregnancies resulting from rape, most allowed abortion when necessary to save a pregnant person’s life, and several allowed it in cases of risks to a pregnant person’s health or severe congenital foetal abnormalities.

Comparative regional experience however suggests that making abortion conditional on exceptional grounds that must be proven tends to result in denial of access. Additionally, in Mexico, access by particularly vulnerable women has often been restricted through resistance in bureaucracies and medical institutions, even in states where abortion was legal.

A string of progressive rulings

Two days after its judgment on Coahuila, the Supreme Court issued another ruling declaring it unconstitutional for state laws to redefine the legal concept of personhood by protecting ‘human life from conception’ – a provision that numerous states had inserted in their constitutions over the past decade, aimed at enabling the criminalisation of abortion.

This second ruling addressed a lawsuit concerning the state of Sinaloa and didn’t automatically apply to other states, so women’s rights activists set out to challenge similar constitutional clauses in other states.

Soon afterward, on 20 September 2021, the Supreme Court declared invalid the principle of conscientious objection for medical practitioners in the General Health Law, and instructed federal Congress to draw up legislation to balance the right of doctors and nurses to refuse to perform a procedure with the right of pregnant people to access a basic health service.

This validated the strategy of the women’s rights movement of trying to make up for the lack of a federal law granting abortion rights by focusing on other pieces of federal legislation, including the General Health Law, which includes risk to physical and emotional health as grounds for legal abortion, and the General Law on Victims, which states that a pregnant woman’s word suffices for a pregnancy to be deemed the product of rape.

A couple of months earlier, the Supreme Court also ruled as unconstitutional time limits set by some states for abortions of pregnancies caused by rape.

On the basis of the 2021 precedent, the 2023 ruling extended decriminalisation to the whole of Mexico. Now Congress has until the end of its current session, which runs until 15 December, to amend the Penal Code clauses that criminalise abortion.

But even after the federal Penal Code is amended, abortion will continue to be a state-level crime in 20 states. This means that abortion complaints will continue to be filed in those states. In most cases judges will ultimately have to dismiss the charges – but women will continue to be subjected to unnecessary barriers and uncertainty, not least because of unclear limits on how far into pregnancy abortions are allowed. For this reason, the women’s rights movement is pushing locally for decriminalisation in every Mexican state. To that end, alongside local collectives, GIRE has already filed legal injunctions against the 20 states that still criminalise abortion.

VOICES FROM THE FRONTLINE

Adriana Jiménez Patlán is director of the Network for Sexual and Reproductive Rights in Mexico, a citizen network of women and young activists that spreads information and defends, demands and monitors respect for sexual and reproductive rights in Mexico.

 

The decriminalisation of abortion is a huge collective achievement for the Mexican feminist movement, which operates in a highly networked way in multiple areas and ranges from those of us who provide information and create spaces for debate to the lawyers who draft bills in favour of women’s rights.

But we must remember that legal, free and safe abortion is not a recent demand. It did not begin with the green tide, the regional movement that started in Argentina and gained momentum in the mid-2010s. It is an issue that the feminist movement has been pushing for since at least the 1970s, when feminists in academia and trade unions advocated for the decriminalisation of abortion and teachers and nurses demanded comprehensive sex education for public school students. Numerous activists and organisations preceded us in this struggle and paved the way for us to finally achieve the goal of free, safe and legal abortion.

Advocacy and community work have made the difference in this struggle. As an organisation we have contributed by providing information on the grounds for legal abortion and linking institutions so that other specialised organisations can train doctors and nurses to ensure the service is provided.

We are present in 12 states across Mexico, and we are mainly involved in information distribution and networking. We provide information to women in parks, schools, streets and door-to-door, in Indigenous communities, rural areas and urban peripheries. We let women know that abortion exists and is an option. We also promote women’s networks across the country to facilitate access to safe medication abortion.

We network with healthcare providers and other CSOs, such as Ipas and the Information Group on Reproductive Choice, to increase the impact of our work for Mexican women’s rights.

 

This is an edited extract of our conversation with Adriana. Read the full interview here.

Global and regional trends

A few high-profile setbacks shouldn’t obscure the fact that the dominant global trend, of which Mexico is part, is of progress in sexual and reproductive rights. According to the Center for Reproductive Rights, the vast majority of countries that have changed their national abortion laws over the past couple of decades have made them less restrictive. Only four countries have gone the other way: El Salvador, Nicaragua, Poland and the USA.

Several Latin American countries have been swept by the ‘green tide’ that originated in Argentina, increasingly liberalising abortion laws. Before the 2010s, abortion was legal in only one Latin American country, Cuba. It was legalised in Uruguay in 2012, and eight years later in Argentina.

This appeared to be a tipping point. Colombia’s Constitutional Court decriminalised abortion in February 2022, and other countries, such as Chile and Ecuador, have since made it legal on limited grounds, notably when pregnancy is a result of rape – which women’s rights organisations in those countries see as a milestone on the road to full legalisation.

Globally, abortion is currently legal on request in 75 countries, often until 12 weeks into pregnancy. Around a dozen additional countries allow it for broad socio-economic reasons. Many more permit it on specific grounds: 49 for health reasons and 41 to save a pregnant person’s life.

But abortion is banned under any circumstances in 24 countries, and overall 40 per cent of women of reproductive age live under restrictive abortion laws. These restrictions have a significant impact on women: it’s estimated that unsafe abortions costs the lives of 39,000 women and girls every year.

Effective access the next struggle

Legal change at the state level across Mexico may not be the most difficult task ahead. Mexican women’s rights groups are getting ready for what promises to be a long battle for effective access. They feel confident, for now, that thanks to decades of hard work public opinion is on their side. But they know that, while there may be less up-front resistance than before, there are still powerful forces against change. Resistance manifests in the imposition of barriers to prevent effective access to what is now recognised as a right, particularly for people from the most excluded groups in society.

Decriminalisation is a great first step, but it is still important to act to counter the denial of effective access to services.

ADRIANA JIMÉNEZ PATLÁN

Denial of access can take many forms: long waiting times, the need for multiple doctors’ appointments and parental or marital consent, disinformation and the extension of conscientious objection from individual health personnel to entire institutions.

Sexual and reproductive health, including abortion procedures, is basic healthcare and should be easily accessible to all. Mexican feminists know this, and will continue fighting to change both policy and minds so nobody is denied access to their rights.

OUR CALLS FOR ACTION

  • Mexican state-level courts and legislatures should update state laws to remove restrictions on voluntary abortion.
  • Mexican abortion rights groups should support women seeking abortions to ensure they can access the services they need.
  • Mexican abortion rights campaigners should deepen exchanges, share strategies and provide support to their peers across the region to boost the progressive regional trend.

Cover photo by Silvana Flores/AFP via Getty Images