by Leticia Bonifaz Alfonzo, Rosalba Mora Sierra
International Journal of Gynecology & Obstetrics 2024;165:375-381. DOI:10.1002/ijgo.15433
Abstract
In September 2021, the Mexican Supreme Court issued a decision disallowing any federal or local judicial authority to indict someone for the offense of voluntary or consensual abortion. This decision also declared unconstitutional penalties imposed on medical personnel who facilitate or assist such procedures. Furthermore, the Court decided that limiting access to abortion in cases of rape to a specific time frame was disproportionate. Later on, in September 2023, the Supreme Court confirmed that absolute criminalization of abortion was unconstitutional and declared that the rule supporting criminalization in the Federal Penal Code was without effects. Consequently, healthcare providers who work in public federal health institutions cannot be criminalized for guaranteeing the right to abortion. This article reviews the reasons advanced by the Supreme Court to guarantee the right of reproductive self-determination, as well as the effects of both decisions beyond the decriminalization of abortion by Mexican federal and state legislatures. The paper also examines the scope and limitations of these rulings and identifies the remaining challenges regarding voluntary abortion procedures in Mexico.
Excerpts from the main text:
Criminalization of voluntary termination of pregnancy (VTP) at any point in pregnancy
The Court analyzed if a total prohibition of VTP is constitutional when a state Criminal Code contains the crime of abortion, punishing whoever caused death to a fetus at any moment of pregnancy (para. 242). It has been established that such protection of unborn life by criminalization was adequate in cases of forced abortion undertaken by a third person contrary to an individual’s right of gestational self-determination. In such a case, protection must be complete and include any moment of pregnancy. However, unconstitutionality arises from using such a prohibition of VTP to define the criminal offense of self-induced or consensual abortion. Criminalizing voluntary abortion at any time of pregnancy totally negates the right of reproductive self-determination of women and IGCs and all related rights, such as the right to dignity, autonomy, privacy and intimacy, health, and free development of personality. Furthermore, when revisiting legal precedents, the Court noted that such restrictive regulation goes against the principle of using the government’s coercive measures only as a last resort for the protection of critical societal values. By outlawing abortion altogether, criminal law is inappropriately used as a symbolic gesture rather than only as a last resort.
For these reasons, the Supreme Court has insisted that the imposition of a punishment for deciding to terminate a pregnancy is ineffective to ensure the correct development of the gestational process and, on the contrary, discriminates against women and IGCs. In this sense, criminalizing this conduct is completely inefficient as it does not prevent women from seeking abortion, but only pushes them to go through unsafe procedures that put their lives at risk. The Court’s constructive reasoning on the right of reproductive self-determination is valuable because of its precision, and in clarifying that the guarantee of this right does not contradict the protection of life during gestation. On the contrary, both rights must be guaranteed in their just measure and proportionality (gestation being seen in a gradually progressive perspective) without suppressing the rights of women and IGCs over their bodies.….
Termination of pregnancy in cases of rape
Lastly, the Court ruled on the 12-week limitation time frame established in the Coahuila state Criminal Code to terminate pregnancy when it is the result of rape (Art. 199). The Supreme Court of Mexico considered that such a term lacked justification and rationality. It found that it could be justifiable, however, to differentiate the cases where the pregnancy did not result from unlawful conduct.
The Court acknowledged that the legal 12-week time frame did not consider the conditions women endure when they are victims of violent acts that cause pregnancy. This is because, given the traumatic nature of sexual violence and social stigmatization, a short time frame in which to decide how best to react might prevent victims from presenting appropriate complaints and seeking remedies.
Limiting the timeframe to access VTP would aggravate the effects of the crime, amounting to a form of revictimization, and violate women’s rights to reproductive self-determination. The Court emphasized that there should be no time limit for VTP in cases of rape. The commission of such a crime requires extra measures to support and assist victims in a timely and safe manner, especially for women who decide to continue with their pregnancy.
The Court had previously ruled on a case that discussed the unfairness of setting a specific time frame for terminating pregnancy in rape cases. However, this decision applied only to the particular case under review (Amparo en Revisión). In contrast, the 2021 judgment AI 148/2017 has broader implications as it extends to federal and all state courts in decriminalizing abortions resulting from rape before as well as at any time after 12 weeks of gestation.
The Court determined that the rights of women and IGCs to reproductive health, equality, and non-discrimination have a constitutional basis and that the protection of human rights must be preferred and maximized. Therefore, in accordance with the principles of choosing what is best for people, effective judicial protection and constitutional supremacy, the Court ordered the Federal Congress to repeal the articles of the Federal Criminal Code that established abortion and the participation of medical personnel or any other person who assists women or ICGs in these procedures as a crime.
The effects of this judgment are similar to those that occurred in Coahuila derived from the AI 148/2017 judgment. That is, neither judicial officers nor prosecutors will be able to associate those persons who attend or assist a VTP with a crime, because the crime no longer exists. This is unlike what happens in the other states that continue to classify VTP as a crime in their local criminal codes.
The case of Acción de Inconstitucionalidad 54/2018 recognized healthcare providers’ right of conscientious objection to participation in services they oppose. Consistent with the ethical guidelines of the International Federation of Gynecology and Obstetrics, the Court ruled that an objection could not be a reason to prevent or delay patients’ access to healthcare services, including those related to sexual and reproductive health, which may involve VTP. To maximize access to medical care, it is essential that healthcare facilities offering gynecological services should engage enough medical and nursing staff who are not conscientious objectors. Objectors must inform women seeking such services of their objection, or, if working in facilities offering gynecological care, promptly refer women considering such services to their facility superiors or administrators to ensure patients’ access to medical attention. This ruling applies to all private and public facilities that offer gynecological care. Individual objecting healthcare professionals are under an ethical and often a legal duty to refer patients they object to treat on grounds of conscience to appropriate others who will serve patients’ timely access to VTP.
Some judicial decisions, such as AI 148/2017, the more recent AI 72/2021 and the Amparo en Revisión 267/2023 highlight the governmental responsibility to ensure patients’ access to medical services that are safe, available, acceptable, affordable, respectful, high-quality and, in the case of public services, accessible. This includes access to procedures and medication needed for VTP, as well as aftercare and other abortion-related services.
The Court has insisted that no cause justifies blocking access to VTP when pregnancy is a product of rape: the service cannot be denied even when gestation is not considered a risk for the physical well-being of the person, and particularly when it refers to a girl or adolescent; VTP cannot be denied either under the argument that VTP does not constitute an urgent service, nor that the right to VTP is claimed outside a time limit for termination of pregnancy caused by rape….
Conclusions
It can be concluded from the above that the Supreme Court’s role in advancing women’s rights of reproductive self-determination has been crucial. The victories registered in the judgments of 2021 and 2023 allow Mexico to make significant progress in ending the threat of incarceration and of subtle legal arguments to limit the exercise of these rights.
Despite such progress, many local state legislatures still need to decriminalize VTP by amending language in the state Criminal Code. Currently, only 12 out of 32 local state governments have partially done so. In addition, there are obstacles to fully decriminalizing the right to reproductive self-determination, including the various criminal charges used to stigmatize those who exercise this right, such as of aggravated homicide, which is sometimes charged even in cases of incidental miscarriage.
Decriminalization continues to be resisted by local state authorities whose Criminal Codes characterize VTP as criminal, even when this bears no material effects regarding imprisonment or suspension of professional licenses to practice. Criminalization in state Criminal Codes will remain one of the main claims in Mexico to limit women’s and IGCs’ access to health care. In contrast to states’ historical conditioning of hazardous or expensive abortions, efforts will continue to focus on ensuring women equitable access to legal, safe, and affordable abortion, according to the WHO’s Abortion Care Guideline.
PHOTO by SCJN: Mexico News Daily, 19 May 2023