Abortion rights: Mexico’s Congress begins legislative work on decriminalisation
Ann DeslandesTuesday 26 March 2024
Image caption: Hispanic women with green scarves on reproductive rights and safe end pregnancy protest. Clara/AdobeStock.com
A group of senators in Mexico has begun the process of enacting legislation in the country’s Congress to remove abortion from the federal penal code. The move follows a landmark judgment by Mexico’s Supreme Court last autumn, which decriminalised abortion at a federal level. The judgment requires the country’s Congress to legislate to implement this change within federal law.
While Mexico City and numerous other states had already decriminalised abortion, it remained a crime at a federal level. A key development came in 2021, when the Supreme Court, via a series of judgments, upheld legislation that removed abortion from the penal code in the northern state of Coahuila. The Court ruled that it was unconstitutional for the state of Coahuila to apply criminal penalties to a person for having or providing an abortion. The Court also said that states cannot ‘establish a right to life from the moment of conception’, and it removed an ‘expansive right to conscientious objection’, which could be used by medical practitioners to deny an abortion to a patient.
The 2021 rulings cleared the way for the Supreme Court to rule in September 2023 that all state laws prohibiting abortion are unconstitutional and ‘contrary to the right […] to choose’ of women and people who are able to get pregnant. Abortion will therefore no longer be treated as a crime under federal statutes. The substantive significance of the ruling is that it provides that federal health institutions must provide abortion care and anyone who can give birth is entitled to receive it.
This represents a significant increase in access, considering that 70 per cent of the Mexican population is able to receive care at public health institutions, explains Daniela Philipson García, a PhD researcher in gender, climate and security at Monash University and spokesperson for Internacional Feminista, a collective that promotes critical dialogues about feminism, foreign policy, international security and diplomacy in Mexico and internationally. She says the ruling ‘significantly increases the number of women who are therefore able to obtain a safe abortion’.
Indeed, the ruling applies to people with ‘gestational capacity’, ie, anyone who can get pregnant.
We need to discuss the role of men […] the right to contraception and family planning will never be fulfilled if there are still men forcing or pressuring women not to use protection
Moira Huggard-Caine
Member, IBA Women Lawyers’ Committee Advisory Board
The Court’s ruling was the result of a test case brought against the Mexican state by the national Grupo de Información en Reproducción Elegida – the Reproductive Choice Information Group (‘GIRE’). The group highlighted that the Court’s previous judgments concerning abortion in Coahuila decriminalised abortion in that state on the basis that it was unconstitutional for abortion to be a crime. As a result of the Court’s judgments in 2021, ‘we commenced a legal strategy of filing injunctions in all jurisdictions of Mexico where abortion was still criminalised,’ explains Melissa Ayala, a spokesperson for GIRE.
One of those jurisdictions was effectively the Federal Penal Code. ‘We filed the injunction against the Mexican Congress and against the Federal Executive for having issued a regulation that criminalised abortion’, explains Ayala. By deciding in favour of GIRE’s challenge, the Supreme Court thereby ‘reiterated that the criminal provisions that continued to criminalise the right of women and pregnant women to decide on the termination of their pregnancies were contrary to the rights to human dignity’, she explains.
The rights focus of the ruling is extremely clear, says Ayala, adding that the judgment not only upheld the right to human dignity but also to ‘reproductive autonomy and to the free development of the personality,’ and ‘the right to health, the right to equality and to non-discrimination.’
While Mexico’s Congress must now pass legislation to implement the ruling, there’s no timeline on when the federal law will be introduced to Congress. The process of doing so will be overseen by the Court, and GIRE are involved in an advisory capacity. Meanwhile, opponents of the ruling – such as Mexico’s Civil Association for the Rights of the Conceived – have vowed to fight to overturn it.
Despite this, the Court’s judgment has been lauded as another victory for the ‘Marea Verde’ (meaning ‘green wave’ or ‘green tide’, named for the green bandanas worn by supporters) feminist movement throughout Latin America – the catalyst for which was Argentina’s move to decriminalise abortion in 2020.
Ana Velasco, a research associate at the Institute for Intercultural and International Studies at the University of Bremen and spokesperson for Internacional Feminista, explains that reproductive rights forms one of the pillars of the Marea Verde movement, along with the fight against the region’s exorbitant rates of feminicide. She highlights the importance of the Mexican judgment to the many feminist collectives in the country who arrange abortion care for people who can’t otherwise access it. The collectives ‘can now argue that the right to abortion is in the constitution’, she says.
September’s ruling has invited comparisons with the US, where the landmark judgment Roe v Wade, which held that the US Constitution generally protected the right to an abortion, was struck down in 2022. US citizens are now increasingly travelling over their southern border to access abortion care, aided by Mexican activists and healthcare providers.
Going forward, says Ayala, the key challenge for making decriminalisation a substantive reality lies in ensuring the quality of Mexico’s public health system, which is gravely under-resourced. ‘It is one thing to have abortion no longer in the Penal Code, but as long as the service is not provided we will continue to have very important challenges’ to accessible and safe abortion care for those who need it, she says. ‘We need all the necessary means for people to truly exercise their right to decide – supplies and trained personnel as well as the infrastructure and the budget.’
Moira Huggard-Caine, Member of the IBA Women Lawyers’ Committee Advisory Board and a partner with Tozzini Freire Advogados in São Paulo, agrees. ‘Very often, discussions over reproductive rights of women are focused exclusively on abortion’, says Huggard-Caine. ‘But the fact is that there are many other relevant layers that need to be considered: contraception, maternal health, sexual education [and] reproductive health are some of the topics that should be included.’
‘We also need to discuss the role of men’, she adds. ‘The right to contraception and family planning will never be fulfilled if there are still men forcing or pressuring women not to use protection, or if they abstain from responsible parenthood. Abortion is just the tip of the iceberg.’