CATALYST PLANET - Mexico Decriminalizes Abortion, Work Remains to Be Done

The Supreme Court of Mexico determined the criminalization of abortion to be unconstitutional. Yet, economic inequities pose challenging barriers to reproductive rights for many Mexican women.

March for the decriminalization of abortion in Mexico City. Diana Caballero. CC BY 2.0.

On September 7 the Supreme Court of Mexico ruled the criminalization of women seeking abortion unconstitutional and established women with a legal right to exercise personal agency regarding their pregnancy.

In striking Article 196 of Coahuila’s Penal Code, the Supreme Court of Mexico determined penalizing women undergoing abortion violates their reproductive freedoms. Additionally, certain sections of Article 198, Article 199 and Article 244 were similarly struck for discriminating against women.

Two days later, the Supreme Court of Mexico invalidated a portion of Sinaloa’s state constitution which recognized a ‘right to life from conception.’ The nation’s highest court declared that federative entities, such as state constitutions, are not able to define the legal conception of personhood. As a result, neither an embryo nor a fetus may claim legal protections which ignore a woman’s rights, including her right to abort.

Reproductive policies in Mexico principally depend upon geography.

After Mexico’s shift toward decentralized governance, the issue of reproductive rights elicited contrasting subnational policy. Certain Mexican states permitted abortion and operated government clinics offering free abortions. Others prosecuted women seeking abortion for manslaughter.

But legal prohibitions of abortion do not discourage women from abortion – they merely endanger them. Dozens of women have been incarcerated for undertaking abortion, alongside doctors forced to renounce medical licenses. Women often risk secret and dangerous abortions, to evade incarceration: these abortions are Mexico’s fourth leading cause of maternal death. Each year 300,000 abortions conducted clandestinely yield serious health problems.

Now, these harms may no longer be legitimized. In its landmark ruling, the Supreme Court of Mexico unanimously admitted the “unimaginable human suffering” experienced by women seeking to abort amidst criminalization. Rural and low-income women particularly bear the brunt of the pains incurred by penalization. The women prosecuted for abortion are disproportionately poor because poor women are most likely to end up at public hospitals due to improper abortions. As Supreme Court President Arturo Zaldivar succinctly explains, “Rich girls … have always had abortions and never gone to prison.” Mexico’s punative judgment of women undertaking abortion has been “a crime that punishes poverty.”

It may be a decade until Mexico adopts legalization at the national scope.

Policy changes will immediately occur within only Coahuila and Sinaloa, the two Mexican states the Supreme Court ruled against. Therefore, for decriminalization to spread via the federal judiciary amparo lawsuits, appeals to state abuses grounded in constitutional protections must be filed against each Mexican state opposing abortion from within. The Supreme Court’s rulings may then be cited as precedent to bind the specific state.

Dr. Caroline Beer, an expert in Mexican politics at the University of Vermont, expects national decriminalization to play out in a process similar to that of same-sex marriage. Some states will voluntarily decriminalize; others will have to be forced. Of Mexico’s thirty-two states, four have decriminalized already, and ten are anticipated to voluntarily decriminalize in the near future. It’s a matter of time and money before sufficient amparos are filed in the eighteen conservative states resisting decriminalization.

Class disparities delineate access to abortion albeit decriminalization.

Concerns remain that a Mexican woman’s ability to exercise her reproductive rights will depend upon her economic means. Mexico could enforce health standards mandating patient access to reproductive services, but without government clinics offering free procedures, it is unlikely lower-class women will have reliable access to safe abortion.

Middle-class and upper-class women either ‘know a doctor’ (who will conduct the abortion competently and confidentially) or fly abroad. “The important thing to understand,” stresses Dr. Beer, “is that legalization of abortion is more an issue of class than an issue of gender.” Poor women publicly suffer criminalization while rich women privately escape it.

Mexico’s decriminalization may have a modest international impact.

Dr. Beer, who also directs Latin American Studies at UVM, considers Mexico’s decriminalization a sign of the region’s willingness to liberalize attitudes regarding reproductive rights, if not legalize them.

Mexico and Argentina, which legalized abortion in December 2020, are two economic engines with international influence. Their decriminalization will be referenced by neighboring powers such as Brazil, Chile, and Colombia.

However, not all Latin American countries are moving forward. However, Nicaragua and El Salvador, whose politics operate on strong men authoritarianism, have actually heightened measures to limit women’s rights activism.

Feminist political groups spearheaded Mexico’s decriminalization.

Notably, Mexican President Obrador did not explicitly support women seeking an abortion after the Supreme Court’s rulings. President Obrador leans conservative but has allowed his women’s rights allies to promote reproductive rights themselves. Even though President Obrador may not personally approve of decriminalization, he acknowledges women’s rights organizations and feminists as significant political constituencies.

Ultimately, the Supreme Court’s rulings incorporate a sensitivity to women’s realities in their jurisprudence. Mexico’s strides to protect women’s rights via decriminalization of abortion stand out among nations regressing backwards, not the least being their immediate northern neighbor.