In Mexico, abortion on request (elective abortion) is legal at the federal level during the first twelve weeks of a pregnancy (i.e., fifteen weeks LMP).[1] Elective abortion is being gradually legalized at the state level due to rulings by the Supreme Court, and in the meantime is available in all states.
On 7 September 2021, the Mexican Supreme Court unanimously ruled that penalizing abortion is unconstitutional, setting a precedent across the country.[2] [3] Abortion has not been a federal crime in Mexico since 7 September 2023.[4] However, criminal law in Mexico varies by state. Before 2019, abortion had been severely restricted outside of Mexico City, where elective abortion was legalized in 2007.[5], elective abortion is legal in Mexico City and the states of Oaxaca, Hidalgo, Veracruz, Coahuila, Colima, Baja California, Sinaloa, Guerrero, Baja California Sur, Quintana Roo, Aguascalientes, Puebla, Jalisco, Michoacán, San Luis Potosí, Zacatecas, the State of Mexico, and Chiapas. Abortion for financial reasons is currently legal in Yucatán. The Supreme Court has issued judicial orders to Nayarit, Morelos, and Yucatán to harmonize their laws before the end of the legislative period (December 2024).
Several northern states have reported people from the United States traveling to Mexico for abortions, including to states such as Nuevo León that have unenforced bans, as there is no residency requirement.[6] [7] [8] However, even in states where abortion is now legal, there continue to be women in pre-trial detention for murder due to spontaneous miscarriage.
In 1931, fourteen years after the writing of the national Constitution, the Mexican Government addressed abortion by making it illegal, except in the cases when the abortion is caused by the negligence of the mother, continuation of the pregnancy endangers the life of the mother, or in pregnancies resulting from rape.[9] [10] [11]
In 1974, Mexico introduced the Ley General de Población, a law requiring the government to provide free family planning services in all public health clinics, and a National Program for Family Planning to coordinate it.[12] The same year, Mexico amended its constitution to recognize every Mexican citizen's "right to freely decide, in a responsible and informed manner, on the number and spacing of their children".[13] In 1991, the state of Chiapas liberalized the law on abortion.[14]
Until the 1990s, the Mexican government considerably expanded its family planning services to rural areas and less-developed parts of the country, reducing inequalities in family planning and contraceptive provision. Contraceptive use doubled from 1976, but the annual rate of increase slowed down in 1992, and has come to a standstill in recent years.[15]
According to data provided by the Guttmacher Institute, in 1996, Mexico had the lowest percentage of women in Latin America who underwent an abortion procedure, at 2.5%.[16] In 2009, Mexico's national abortion rate was at about 38 abortions per 1,000 for women between the ages of 15 and 44, at 3.8%. The rates are important to consider because of Mexico's stringent anti-abortion laws, and so might not be the most accurate representation of the actual data.[17]
In the early 2000s, a prominent pro-choice movement known as Marea Verde gained traction in Mexico and across Latin America. Its influence inspired women to speak up and demand change.[18] Between 7 and 9 September 2021, in a unanimous 10-to-0 ruling, the Supreme Court of Justice decriminalised abortion in Coahuila and Sinaloa.[19] [20] [21] Nevertheless, the effects of these rulings are broader, as it sets a federal binding precedent: Judges cannot sentence people to jail for either having or assisting in induced abortions, even if local legislations have not changed their criminal laws.[22] The Supreme Court also established that local rules granting protections of "life from conception" were invalid,[23] and that access to legal abortions is a fundamental right of women. This historic landmark paves the path for advocates to challenge abortion restrictions in each state.[24]
However, there continue to be women in pre-trial detention for murder due to spontaneous miscarriage even in states where abortion is legal.[25]
See also: Abortion law.
On 24 April 2007, the Legislative Assembly of the Federal District (LAFD) reformed Articles 145 to 148 of the Criminal Code, and Article 14 of the Health Code, all dealing with abortion; 46 of the 66 members (from five distinct parties) of the LAFD approved the new legislation.[26] The changes expanded the previous law, which had allowed legal abortions in four limited circumstances.[27] In Mexico, abortion proceedings fall under local state legislation. A landmark Supreme Court decision in 2008 found no legal impediment to it in the Mexican Constitution, and stated that "to affirm that there is an absolute constitutional protection of life in gestation would lead to the violation of the fundamental rights of women".[28]
All states' penal codes permit abortions in cases of rape, and all but Guanajuato and Querétaro's permit it to save the mother's life. According to national law, no police report is needed for cases of rape. Fourteen out of thirty-one expand these cases to include severe fetal deformities, and the state of Yucatán includes economic factors when the mother has previously given birth to three or more children.[29] Nevertheless, according to Jo Tuckman of The Guardian, in practice, almost no state provided access to abortions in the cases listed,[30] and since the Supreme Court decision, abortion providers are not prosecuted for carrying out abortions.
There are, however, some exceptions. Since 2007, Mexico City, where approximately 7.87% of the national population lives,[31] offers abortion on request to any woman up to 12 weeks into a pregnancy,[32] which, along with Cuba, Uruguay, and Argentina, is one of the most liberal legislations on this matter in Latin America. In contrast, recent political lobbying on behalf of the dominant Roman Catholic Church and anti-abortion organizations has resulted in the amendment of more than half of the state constitutions, which now define a fertilized human egg as a "person", with a "right to legal protection".[33], none of those states removed its exceptions to abortion to reflect the changes in its constitution, but according to Human Rights Watch and a local NGO, over the past eight years, the conservative-leaning state of Guanajuato "has denied every petition by a pregnant rape victim for abortion services", and about 130 of its residents have been sentenced for seeking or providing illegal abortion.[34] However, these days, the government is aware of the existence of the institution called "Las Libres de Guanajuato" which provides abortions and support for women in need, and ignores its existence.[35]
Following the decriminalization of abortions in the Distrito Federal, also known as Mexico City, the states of Baja California and San Luis Potosí enacted laws in 2008 bestowing "personhood" rights from the moment of conception.[36] In September 2011, the Supreme Court rejected two actions to overturn the laws enacted by the states of Baja California and San Luis Potosí for unconstitutionality. The Court recognized "the power of the state legislature" to enact laws on the subject. However, their decision does not criminalize or decriminalize abortion in Mexico.
The September 2021 Supreme Court's ruling states that embryos cannot have the same rights and protections to any born person. Fetuses have protections that increment with time, but will never be ahead of the reproductive freedom of the pregnant woman. It also declared that clandestine abortions put the lives of women at risk, creates inequality, and produce unnecessary fears over health professionals (doctors and nurses).[37] Thus, the illegality of abortion contravenes article 4 of the Mexican Constitution which allows reproductive rights and access to health services to any Mexican citizen.
This decriminalisation is the first step towards legalisation. Just like same-sex marriage, each of the 28 local legislations that do not allow safe and free abortions on request will now be forced to change their laws. Each state will establish the frame of time (weeks or months of the pregnancy) to have access to an elective abortion. Many NGOs like GIRE have declared they will push for the twelve-week frame, just like in Mexico City, Oaxaca, Hidalgo, and Veracruz.[38] If local legislations do not change anything, the Supreme Court could intervene declaring unconstitutionality (like in Coahuila and Sinaloa in September 2021), pushing even more for legalisation. Also, amparos would be automatically granted to any citizen that wants to exercise their right to abortion on those states that have not changed the law.[39]
After this last ruling, public institutions like the Instituto de la Defensoría Pública Federal declared they will help all those women, on any state, under prosecution or in jail, accused of any criminal charge related to induced abortion.[40] In Mexico, Supreme Court rulings are not retroactive, except when human rights are involved. Local attorneys on those states that have not changed their laws could still prosecute people that have undergone abortions, specially those more conservative, but judges will not whatsoever declare them guilty. Some hard-line conservative judges may still try to incarcerate someone, but that case would escalate to higher judicial institutions that will automatically invalidate the sentence, and the judge would be heavily punished for human rights violations. In other words, it's socially and legally unethical for a judge to incarcerate a woman that underwent an abortion in Mexico.[41]
The National Supreme Court of Justice ruled on 7 August 2019 that rape victims have the right to receive abortions in public hospitals. Girls younger than 12 need parental permission.[42]
On 25 September 2019, Oaxaca became the second state, after Mexico City, to decriminalise abortion up to 12 weeks of pregnancy. The vote in the state legislature was 24 in favor, and 12 against. It is estimated that before decriminalisation, 9,000 illegal abortions were performed in Oaxaca every year, 17% of them on women of 20 or younger. Abortion was the third cause of maternal mortality, and there were 20 women in prison for illegal abortions.
In October 2019, Las Comisiones Unidas de Procuración y Administración de Justicia y de Igualdad de Género (The United Commissions for the Procuration and Administration of Justice and Gender Equality) in Puebla voted against decriminalization of abortion and legalization of same-sex marriage. The penalty for abortion was reduced from five years to one year. A majority of the legislators were elected by the Together We Will Make History coalition; and Marcelo García Almaguer of the National Action Party called out members of National Regeneration Movement for doublespeak, since they call themselves "progressives", yet voted to support the criminalization of women.
In September 2021, the Supreme Court of Justice ordered the state of Coahuila (articles 196, 198, and 199) and the state of Sinaloa (article 4 Bis A) to remove sanctions and restrictions for abortion from its criminal code and local Constitution, respectively. This decision stems from 2017, when former Attorney General Raúl Cervantes challenged the constitutionality of both laws.[43] That same day, the Government of the state of Coahuila ordered the immediate liberation of all women imprisoned on pre-trial detention. Those women with a previous sentence will be released with the aid of an amparo.[44]
| + Legalisation of abortion on request in the first 12 weeks of pregnancy | ||||
| Federal entity | Date of enactment/ruling | Date effective | Legalization method | Details |
|---|---|---|---|---|
| Judicial decision | Ruling of the Supreme Court[45] | |||
| Legislative statute | Passed by the Congress of Aguascalientes | |||
| Legislative statute | Passed by the Congress of Baja California[46] | |||
| Legislative statute | Passed by the Congress of Baja California Sur[47] | |||
| Pending | Legislative statute | Passed by the Congress of Chiapas[48] | ||
| Judicial decision | Ruling of the Supreme Court[49] | |||
| Colima | Constitutional amendment and legislative statute | Passed by the Congress of Colima[50] | ||
| Legislative statute | Passed by the Congress of Guerrero[51] | |||
| Hidalgo | Legislative statute | Passed by the Congress of Hidalgo[52] | ||
| Jalisco | Legislative statute | Passed by the Congress of Jalisco[53] | ||
| Pending | Legislative statute | Passed by the Congress of the State of México[54] | ||
| Legislative statute | Passed by the Legislative Assembly of Mexico City[55] | |||
| Michoacán | Legislative statute | Passed by the Congress of Michoacán[56] | ||
| Legislative statute and constitutional amendment | Passed by the Congress of Oaxaca[57] [58] | |||