On September 7, 2021, the Supreme Court of Mexico in a historic decision, has unanimously ruled that abortion is no longer a crime in Mexico, setting an important precedent across the whole country and possibly across Latin America.
Describing the decision as “a watershed in the history of the rights of all women, especially the most vulnerable” President of the Mexican Supreme Court Arturo Zaldivar said, “It is one more step in the historical struggle for (women’s) equality, dignity and the full exercise of their rights.”
Hundreds of women are prosecuted and penalized in Mexico each year for undergoing an abortion. The ruling will make it no longer possible to prosecute any woman for having an abortion without violating the criteria of the court and the constitution, Zaldivar said.
This law was an attempt to annul the abortion law in Coahuila, a Mexican state on the Texas border that had made abortion a criminal act. Coahuila’s state government issued a statement saying the ruling would have retroactive effects and that any woman imprisoned for abortion should be released “immediately.”
This was a historic moment of victory for women’s rights and human rights activists in Mexico who had been fighting for women’s reproductive choices and rights for decades in Mexico – home to the world’s second-largest population of Catholics.
What does this ruling mean to Mexico and the rest of Latin America?
Only four Mexican states — Mexico City, Oaxaca, Veracruz and Hidalgo — allow abortions in most circumstances. In the other 28 states, abortion is a crime, and women are prosecuted, penalize and even jailed for undergoing an abortion. Though all jurisdictions have some exceptions and permit legal abortion for rape survivors. For almost seventy years, the laws on abortion remained virtually untouched in Mexico.
Paula Avila-Guillen, executive director of the Women’s Equality Center, stated in a statement following the decision “As of this moment, any Mexican state that criminalizes abortion is in direct defiance of the Federal Constitution. As of this decision, all Mexican states where abortion is still criminalized are obligated to modify their legal frameworks to comply with the standard set by the Court,”
Decriminalizing doesn’t necessarily mean easy access to safe abortion…
According to New York Times, Supreme Court’s decision requires legal changes in each of the 28 states in Mexico that still criminalize the procedure or a change in the law by state legislatures. The ruling did not specify how far into a pregnancy a woman could legally obtain an abortion, meaning those terms will likely be determined at the state level.
Asides from the unfavourable legal framework, women in Mexico faces several social and institutional barriers to abortion. There is a severe social and religious stigma associated with abortion. While it’s no longer a crime in the eyes of law, it’s still considered a ‘sin’ by many people and religious institutions. Even in situations and places where abortion is legal, women, especially those who are poor or from marginalized communities face extreme challenges to access safe abortion.
According to a Human Rights Watch Report, even though abortion after rape is legal in all states in Mexico, when girls and women who get pregnant as the result of rape want to terminate the pregnancy, they face severe challenges. Often, prosecutors, doctors, and social workers ignore the
“Sometimes, government officials actively silence rape victims with insults and threats, in flagrant disregard for their human dignity and their rights to nondiscrimination, due process, health, and equality under the law.” the report mentions.
Here is a heartbreaking and horrific story of a rape survivor published in the same report – a 16-year-old girl in Guanajuato who became pregnant by systemic rape by her father and wished to terminate her pregnancy. The public prosecutor persuaded the adolescent girl to change her accusation against her father from rape to incest—for the father to get a shorter jail sentence, as incest is considered a less serious crime than rape. Since abortion only is legal after the rape and not after incest the abortion was not authorized, and Hernández was forced to carry the pregnancy to term.
Thus the decriminalization of abortion is not the end of the fight of the women’s rights activists and organizations, ensuring legalization of abortion in all states and access to safe abortion for women from all backgrounds is the priority for everyone invested in this fight.
Abortion Laws in Latin America
Similar to Mexico, throughout Latin America, women face multiple barriers to exercising their reproductive rights including restrictive abortion laws, severe institutional barriers, and social stigma because of cultural and religious beliefs.
Fewer than 3% of the region’s women live in countries where abortion is broadly legal—that is, permitted either without restriction.
In El Salvador, Dominican Republic, Honduras and Nicaragua abortion are punishable as an illegal act. No exceptions are made to that prohibition, including where the mother’s life is in danger or to safeguard her physical or mental health or in cases where the mother has been raped.
In many countries in Latin America abortion is permitted ONLY exclusively to save a mother’s life or when there is a fetal anomaly. Strict abortion laws are usually accompanied by severe punishment and the absence of institutional corporations and intimidation in the justice sector. For example, in El Salvador women can be jailed for up to 40 years, in Paraguay, an 11-year-old victim of sexual violence was denied an abortion and in Mexico, a 16-year-old rape victim was forced to give birth to her father’s child.
But we are hopeful that the Mexico supreme court’s ruling will not only cause legal reforms within the country – in all 32 states of Mexico. There is a high likelihood that it will have a ripple effect in entire Latin America exactly the way the ruling in Mexico followed the historic legalisation in Argentina in December 2020, when Argentina legalized elective abortion, marking a historic shift in the country.
Mexico and Argentina are not the only two countries in Latin America where abortion laws were amended recently, pro-choice movements are growing stronger in Chile and Colombia for several years. We hope to see some positive development in abortion laws in these countries soon.
Reproductive Rights are Human Rights:
Over the past two decades, international human rights norms have evolved significantly to recognize the denial of safe abortion services as a human rights violation. U.N. treaty bodies, which take a measured approach to interpret international human rights law, have consistently and extensively opined on abortion access and restrictions.
Making abortion illegal doesn’t stop abortion but pushes women to opt for unsafe means for abortion. An estimated 14 million unintended pregnancies occur each year in Latin America and the Caribbean; of these, nearly half (46%) end in abortion.
We must not forget that not all women have access to contraceptives, sex education and not all pregnancies are desired. Millions of pregnancies are the result of rape and sexual violence. Unfortunately, in countries with strict anti-abortion laws, the legal framework around rape and sexual violence are extremely poor and perpetrators often go unpunished and unprosecuted. Above all, there is no framework and mechanism for protecting girls and women from being exploited and sexually violated by family members. Many marital rapes and rapes within families go unreported.
Thus, to terminate unwanted pregnancies, seeking unsafe and unscientific abortion are the only choices many women are left with. 13 percent of the global maternal death are attributable to unsafe abortion. Maternal mortality increases when countries criminalize abortion. Restrictive abortion laws can have a devastating impact on the right to life. Governments could save thousands of women’s lives every year by ensuring access to safe abortion service.
The criminalization of abortion or any barriers to women’s access to safe and legal abortion is a violation of several human rights including, rights to life, bodily rights and integrity, rights to health and health care, right to nondiscrimination, right to equality, right to privacy, right to be free from cruel, inhuman or degrading treatment, right to personhood and dignity and right to decide the number and spacing of children. We hope, all states shall put women’s human rights first when designing policies and laws on abortion. And decriminalization of abortion in Mexico should serve as a wake-up call for other countries, including the United States to prioritize women’s rights and agency to their own life and choices.