Since September 2021, abortion has been decriminalized in Mexico. The Supreme Court of Mexico unanimously declared the law that had criminalized abortion to be unconstitutional. Nevertheless, abortion legislation differs per state, and many states have not come to the point that they have a clear abortion law as of January 2022. The only law that applies to all states, a federal norm, is that abortion is legal if the pregnancy is the result of rape – the remaining legislation is for each state to decide on. In some states, fetal impairment, mental, physical, or general health of the woman and broad socioeconomic reasons can be enough to have an abortion, and different combinations of these criteria exist in the 32 states. Women and abortion providers have up until recently faced prosecution if an abortion is performed outside of the government issued regulations and state legislation. According to GIRE, a reproductive rights organization, between 2009-2011, over 679 women were sentenced for having an abortion – some of them for murder due to a miscarriage.
As of January 2022, safe abortions are available on request up to 12 weeks of gestation in the federal states Oaxaca, Hidalgo, Veracruz, Colima, and Baja California, as well as Mexico City. Prior to legalization in 2019, around 9,000 illegal and unsafe abortions were performed every year in Oaxaca alone, and it was the third largest cause of death of women in the region. Women from other parts of Mexico can travel to these safe havens to terminate their pregnancies. Since 2007, over 215,000 women from all over Mexico have ventured to the capital and had a safe and legal abortion at public hospitals. However, this is not a real possibility for everyone, considering the travel distance, necessity of identity papers, need of a companion to enter the abortion facility, cost attributed to the abortion procedure and other obstacles. Guttmacher Institute (2008) estimates that there are about 44 abortions for every 100 live births on a national level, resulting in over 1 million abortions performed every year. In 2009, around 160,000 women were hospitalized due to post-abortion related complications.
Considering the federal system regarding penal codes in Mexico, there are several historical developments to take into account.
In 1871, the so-called Juárez Code considered two non-punishable causes for terminating a pregnancy: when the abortion was the result of recklessness and when it was carried out to save the woman's life. In 1931, the 1931 Code for the District and Federal Territories entered into force, which added another reason: when the pregnancy was the result of rape. In 1936, there was an attempt to withdraw the penalizing legislation from the hands of Dr. Ofelia Domínguez Navarro, a cause supported by the feminists of the time, but which nevertheless would not prosper because the United Front for the Rights of Women focused on obtaining voting rights for women. This was consolidated in 1953.
The resurgence of the Mexican feminist movement in the 1970s forced a critical reflection on motherhood as an imposition on women and a rekindling of the abortion debate. From that moment on, feminists presented various initiatives for decriminalization, held debates on the subject, and various mobilizations in favor of the legalization of abortion in the different states of the Mexican Republic. Those involved included the National Women's Movement, the Coalition of Feminist Women, the National Front for Voluntary Motherhood and the Decriminalization of Abortion, the Information Group on Chosen Reproduction (GIRE), activists, academics, artists, women in society civil, all feminist politicians, related to feminism or the critical gender perspective, mainly.
The political situation in the capital of Mexico in the 1990s meant that the debate not only did not stop, but that various legal initiatives were presented, and forums were created to address the issue. It was not until April 19, 2007 when finally, the Justice, Health and Gender Commissions of the Federal District Legislative Assembly approved the opinion on the decriminalization of abortion, in the following terms:
1. The legal criminal definition of abortion was reformulated, which was as follows: "Abortion is the termination of pregnancy after the twelfth week of gestation."
2. Pregnancy was defined for the purposes of the Penal Code.
3. The sanctions for women who had an abortion were reduced
4. To protect the free and voluntary motherhood of women who were forced to abort, the figure of forced abortion was established.
5. The Federal District Health Law was amended.
This bill was called the Legal Interruption of Pregnancy, and the women’s groups and politicians and conservative faction ended up in constant fights. Mexico is largely a Catholic nation, and the faith and the church have traditionally held a strong position in society. It is also known that the church actively lobbies legislators.
In 2008, the Supreme Court voted in favor of Mexico City regulating their own abortion legislation and that states themselves could decide on their stance on abortion and illegality. As a consequence, several federal states enacted stricter abortion laws to protect “the unborn life”, banning the procedure in almost all circumstances. In 2019, Oaxaca became the second state to legalize abortion, due to efforts of the feminist movement. Dressed in green, the color that represents female rights in Latin America, they won the fight for decriminalization of abortion in the state.
In June 2021, Hidalgo became the third state to legalize abortion up to week 12, and Veracruz followed suit in July. In September 2021, the question of abortion in the state of Coahuila was brought to the Supreme Court. They deemed the abortion ban unconstitutional, and following Mexico’s legal framework, this affects all the federal states. The federal states Baja California and Colima legalized abortion in October 2021 and December 2021, respectively. The rest of the states are expected to follow in the coming years.
Decriminalization and legalization of abortion has not come without fight of the Mexican feminist movement. There was a Supreme Court hearing in July 2020 concerning an injunction to decriminalize abortion in Veracruz, formerly known as a state with very strict abortion laws. Both staunch opponents of abortion and feminist groups in green clothing were active in the debate, which ended up with the Supreme Court deciding that they would not legalize abortion in Veracruz. This was seen as a setback for the fight for abortion, seeing as legalization could set a precedent for all of Mexico’s states.
Abortion in Mexico is now decriminalized, but access is yet not secured. The federal states have to implement abortion laws on a state-by-state basis, and do not have the infrastructure nor the culture amongst medical personnel to perform them. Previously, health care workers were obliged to report to the authorities if they received patients with botched abortions. Moreover, there are worries that the decree from the Supreme Court is too broad to be interpreted in a similar way across all federal states. The worry is that this can end up penalizing women in some states, for example regarding conscientious objection and strict measures regarding gestational age. Today, it is estimated between 700 and 3,000 women are imprisoned for abortion-related crimes. With the new law decriminalizing abortion, these women should be freed, seeing as Mexican laws are retroactive when it is a question of human rights. However, seeing as it is a federal system, it is in reality up to the states and when they implement new abortion legislation. Activists are ready to continue the fight.
Written by:Tilla Solli for The Women's Museum of Norway
Information collected by the Women's Museum in Costa Rica
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