In Mexico, abortion on request (elective abortion) is legal at the federal level during the first trimester (the first twelve weeks of pregnancy, i.e., the first fifteen weeks LMP).In Mexico, pregnancy is counted from implantationp. 19 rather than from the end of the last menstruation. Elective abortion is being gradually legalized at the state level due to rulings by the Supreme Court, and in the meantime, it is available in all states. Abortion beyond the first trimester is available for various legal grounds, such as rape and health, that vary by state.
On 7 September 2021, the Mexican Supreme Court unanimously ruled that penalizing abortion at any stage of pregnancy is unconstitutional, setting a precedent across the country. Abortion has not been a federal crime in Mexico since that date. However, criminal law in Mexico varies by state. Before 2019, abortion had been severely restricted outside of Mexico City, where elective abortion in the first trimester was legalized in 2007. , elective abortion in the first trimester 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, Chiapas, Nayarit, Chihuahua, Campeche, Yucatán, and Tabasco. The Supreme Court has issued judicial orders to Morelos to harmonize their laws. 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. However, even in states where abortion is now legal, there continue to be women in pre-trial detention for murder due to spontaneous miscarriage, though the number of such cases has been drastically reduced since 2021.
History
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.
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. The same year, Mexico amended its constitution to recognize every Mexican citizen's "right to decide freely, in a responsible and informed manner, on the number and spacing of their children." In 1991, the state of Chiapas liberalized the law on abortion.Cad. "Mexico: State Loosens Abortion Law". Off Our Backs, vol. 21, no. 3, 1991, pp. 11–11. JSTOR, http://www.jstor.org/stable/20833453 accessed 21 March 2019
Until the 1990s, the Mexican government 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 compared to 1976, but the annual rate of increase slowed down in 1992 and has come to a standstill in recent years.
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%. 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.
In the early 2000s, a prominent pro-choice movement known as Marea Verde gained traction in Mexico and Latin America. Its influence inspired women to speak up and demand change. Between 7 and 9 September 2021, in a unanimous 10-to-0 ruling, the Supreme Court of Justice decriminalized abortion in Coahuila and Sinaloa. Nevertheless, the effects of these rulings are broader, as they set 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. The Supreme Court also established that local rules granting protections of "life from conception" were invalid 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.
However, , there continue to be women in pre-trial detention for murder due to spontaneous miscarriage, even in states where abortion is legal.
Legality
In Mexico, abortion proceedings fall under local state legislation. 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. This made it one of the most liberal legislations in Latin America, along with Cuba, Uruguay, and Argentina. The changes expanded the previous law, which had allowed legal abortions in four limited circumstances. A landmark Supreme Court decision in 2008 found no legal impediment to an elective abortion in the Mexican Constitution. It 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."
Since the Supreme Court decision, abortion providers have not been prosecuted for carrying out elective abortions in the first trimester. However, some women have been jailed for home or spontaneous abortions. Abortions after the first trimester are allowed for cause, with the details varying by state (e.g., for rape, a risk to life, a risk to health, miscarriage, fetal impairment, etc.). All state penal codes permit late abortion in cases of rape, and as mandated by national law, no police report is needed for cases of rape. All states permit late abortion to save the mother's life except for Guanajuato and Querétaro, which have the most restrictive laws in the nation. Michoacán, Yucatán, and Campeche allow it for socioeconomic hardship, making their laws the most liberal in the country. The previous requirement in Yucatán that the woman already have at least three children was rescinded by the legislation that legalized elective abortion in the first trimester.
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. In September 2011, the Supreme Court rejected two actions to overturn the laws passed by the states of Baja California and San Luis Potosí for unconstitutionality. The Court recognized "the power of the state legislature" to enact regulations 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 as 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, create inequality, and produce unnecessary fears over health professionals (doctors and nurses). 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 decriminalization is the first step towards legalization. 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. If local legislation does not change anything, the Supreme Court could intervene, declaring unconstitutionality (like in Coahuila and Sinaloa in September 2021) and pushing even more for legalization. Also, amparos would be automatically granted to any citizen that wants to exercise their right to abortion in those states that have not changed the law.
After this last ruling, public institutions like the Instituto de la Defensoría Pública Federal declared they would help all those women in any state, under prosecution or in jail, accused of any criminal charge related to induced abortion. In Mexico, Supreme Court rulings are not retroactive, except when human rights are involved. Local attorneys in those states that have not changed their laws could still prosecute people who have undergone abortions, especially those more conservative. However, judges will not whatsoever declare them guilty. Some hard-line conservative judges may still try to incarcerate someone. However, that case would escalate to higher judicial institutions that would 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 who underwent an abortion in Mexico.
State law and court decisions The Supreme Court of Justice of the Nation ruled on 7 August 2019 that rape victims have the right to receive abortions in public hospitals. Girls younger than 12 need parental permission.
On 25 September 2019, Oaxaca became the second state, after Mexico City, to decriminalize 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 decriminalization, 9,000 illegal abortions were performed in Oaxaca every year, 17% of them on women 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. Most of the legislators were elected by the Juntos Haremos Historia coalition, and Marcelo García Almaguer of the National Action Party called out members of Morena for doublespeak since they call themselves "progressives" yet voted to support the criminalization of women.
In September 2021, the Supreme Court of Justice of the Nation ordered the state of Coahuila (articles 196, 198, and 199) and 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. 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.
Responding to a 2023 request for information on the number of women in detention for the crime of abortion, the states of Aguascalientes, Guanajuato, and Oaxaca reported one each, and Nayarit reported two. Abortion was legal at the time in Oaxaca. Baja California, Chiapas, Coahuila, Colima, Guerrero, Jalisco, Mexico City, Morelos, Nuevo León, Quintana Roo, San Luis Potosí, Sinaloa, Tabasco, Tamaulipas, Tlaxcala, Veracruz and Zacatecas reported there were none in those states. The other states did not respond or requested more time.