Mexico - July 2022

On 2 June, Baja California Sur became the ninth state in Mexico to decriminalise abortion, with the state congress voting to allow the legal termination of pregnancy up to 12 weeks after conception, no matter the circumstances. This followed a similar ruling in Guerrero just two weeks before.  These are the latest victories for Latin America’s pro-abortion movement, known as the ‘green tide’, and indicative of a growing trend towards relaxing abortion legislation in Mexico, prompted by a landmark supreme court (SCJN) ruling in September 2021.

Baja California Sur’s state congress ruled to decriminalise abortion up to 12 weeks with 16 votes in favour and three against. The ruling was made in response to an initiative filed by Mónica Iris Jasis Silberg, a local women’s rights activist. The punishment for those who terminate a pregnancy after 12 weeks was also reduced, from six months to two years in prison, to a maximum of two months of community service. This followed an almost identical ruling in Guerrero on 17 May, where abortion was legalised up to 12 weeks with 30 votes in favour and 13 against.

Speaking at the congress session, Guerrero state deputy Beatriz Mojica Morga of the opposition Partido de la Revolución Democrática (PRD), stated that the ruling did not mean congress was promoting abortion, but rather was a case of “recognising the human right of a woman to decide about her life and her body”. She also noted it was an attempt to eliminate the deaths of women in Guerrero from clandestine abortions. She added that she hoped the ruling, which also reduced prison sentences for those performing an abortion after 12 weeks from 1-3 years to between six months and two years, would eradicate the “legal and social criminalisation” that has affected women for decades “especially the poorest and those with little access to information about their sexual and reproductive rights”.

Feminist groups across Mexico have celebrated the decisions in Baja California Sur and Guerrero. The Mexico City (CDMX)-based Elige Red de Jóvenes por los Derechos Sexuales y Reproductivos posted on Twitter, writing: “The green tide will not stop until it floods all of Mexico!” Indeed, these are among many successes for the pro-choice movement in Mexico in recent months. For over a decade, CDMX was the only state to allow abortion legally under any circumstances, doing so in 2008. Oaxaca followed suit in 2019, but the two states remained the exception until July 2021, when Veracruz and Hidalgo decriminalised abortion. They were followed by Baja California in October, Colima in December and Sinaloa on 8 March 2022 – fittingly the date of International Women’s Day. Baja California Sur and Guerrero now join the list, meaning the number of states permitting abortion has more than quadrupled in just nine months.

The SCJN has been a key instigator in this wave of decriminalisations. In September 2021, while ruling on a case regarding restrictions on abortion in Coahuila state, the SCJN declared it unconstitutional to outright criminalise abortion. Although only immediately affecting Coahuila, SCJN president Arturo Zaldívar said at the time that he hoped the ruling would establish a “necessary standard for all judges in the country”, suggesting it could be applied elsewhere. Following the ruling, Coahuila’s judiciary decriminalised abortion, although the state is yet to reflect these changes in its penal code.

Shortly after this ruling, the SCJN issued other resolutions to ease restrictions on abortion, declaring it unconstitutional for state constitutions to establish a right to life from the moment of conception. This ruling was used to invalidate parts of the constitutions of Nuevo León and Veracruz states on 26 and 30 May respectively. The SCJN has also struck down part of the general law regulating health services nationwide, which established an expansive right to conscientious objection by medical personnel. Although not directly related to abortion, the SCJN stated this decision was “especially important for the purpose of ensuring access to abortion, given that conscientious objection has been used worldwide to deny reproductive healthcare”.

Additionally, on 24 May, the SCJN issued a ruling to allow minors over the age of 12 to gain access to abortion in the case of rape without needing parental consent. Since 2016, every clinic or hospital in Mexico has been required to grant abortions in the case of rape upon request under oath of the pregnant person. No criminal complaint needed to be filed, as was the case prior to 2016. However, minors still needed the consent of a parent or guardian. The SCJN ruling therefore allows young rape victims to access abortion more easily.

Nevertheless, despite these changes, abortion still remains illegal except for in very limited circumstances in the majority of Mexico’s 32 states. These states still mandate prison time or other penalties for women who have abortions or medical staff that assist them, unless in the case of rape and, in some states, foetal malformation or when the woman’s survival or health is at risk. President Andrés Manuel López Obrador, who has an uneasy relationship with the country’s growing women’s rights movement, and is known to hold socially conservative views, has been reluctant to state his opinion on abortion, and the issue remains a highly divisive topic across the country. On 7 May, protestors took to the streets in CDMX to demand legal abortion be repealed in the few states that allow it and to guarantee the right to conscientious objection for health personnel. However, with continuing pressure from the SCJN, it is likely that other state congresses will soon follow in the footsteps of Guerrero and Baja California Sur.

Roe v Wade

As increasing numbers of Mexican states ease access to abortion, the opposite is taking place north of the border. On 24 June, US Supreme Court justices voted to overturn Roe v Wade, the 1973 ruling that granted women across the US a constitutional right to abortion. The ruling does not constitute a nationwide ban on abortion, but rather allows individual states to introduce their own regulation, meaning abortion could be banned outright in some parts of the country. It is expected this could happen in almost half of US states.