Analysis. Mexico’s top court unanimously decriminalized the procedure with retroactive effect. It will be free and legal in federal hospitals.

‘A day of justice.’ In Mexico, abortion is no longer a crime

No woman will ever have to go to jail again for having an abortion in Mexico. On Wednesday, 15 years after the decriminalization of pregnancy termination in Mexico City, the Supreme Court of Justice declared “unconstitutional the legal system that penalizes abortion in the Federal Criminal Code, because it violates the rights of women and gestating persons.”

The ruling not only removes the crime of abortion from the Criminal Code (punishable until now with sentences ranging from one to three years in prison), but will also have retroactive application, so that, as Senator Olga Sánchez Cordero explained, both pending criminal proceedings and convictions already handed down will be annulled. And it will have to be respected by “any jurisdictional and administrative authority, in particular by the staff of the health institutions involved in the practice of pregnancy termination and by the agents of the public prosecutor’s office” who will be processing all complaints.

In 2021, amid bitter protests from the Catholic Church, the Court had declared the criminalization of abortion unconstitutional, in a ruling that applied immediately only to the state of Coahuila, on the Texas border. Nevertheless, by setting a binding precedent for all state judicial powers, this ruling triggered a long and laborious process of decriminalizing abortion state by state, amid obstacles posed by conservative Catholic movements: last week, Aguascalientes had become the 12th state to decriminalize the voluntary termination of pregnancy.

The new ruling, although it does not overturn local laws – abortion will remain illegal at the state level in 20 of the country’s 32 states – will now allow women to have abortions legally and free of charge in federal hospitals and clinics throughout majority-Catholic Mexico.

With this decision – unanimously approved by the Court’s 11 members three weeks before the Global Day of Action for Legal, Safe and Affordable Abortion on September 28 – the green tide has conquered another chunk of Latin America, where, in addition to Mexico, abortion is now legal in Colombia, Argentina, Cuba, Guyana, French Guiana and Uruguay (but is still completely banned in Nicaragua, Honduras, El Salvador, the Dominican Republic, Haiti and Suriname).

And this is also a strong signal for the United States, where, by contrast, one year after the June 24, 2022 overturning of the historic Roe vs. Wade ruling of 1973, which guaranteed constitutional access to voluntary termination of pregnancy in all 50 states of the union, abortion has become difficult to access, if not impossible, in nearly half the country, with conservative lawmakers even trying to find ways to block abortion travel from one state to another. Nevertheless, the trips continue, not only within the U.S. but also to Canada and Mexico; indeed, a sharp increase in the number of North Americans coming to Mexico is expected after Wednesday’s ruling, who, taking the opposite route to that followed by so many Mexicans in search of better living conditions, will now cross the border to seek abortions in hospitals and clinics in the US’s southern neighbor.

“I am very moved and very proud,” said Rebeca Ramos, executive director of GIRE (Grupo de Información en Reproducción Elegida), the feminist organization that filed the appeal last year that was upheld by the Supreme Court on Wednesday. “It is a day of victory and justice for Mexican women,” rejoiced the Instituto Nacional de las Mujeres (Inmujeres).

But even though “this is the greatest achievement we have reached in this struggle,” in the words of GIRE Deputy Director Isabel Fulda, the journey does not end here. Because, she pointed out, “there is a great distance between allowing abortion and guaranteeing the right to choose for oneself in practice,” especially for low-income women, both from a medical point of view – given the fragility of the health services – and from a legislative and judicial point of view (in the 20 states that have not yet amended their Criminal Codes).

In all likelihood, this challenge will soon be on the agenda of a woman president. In the presidential elections set for June 2, 2024, the candidate of the governing Morena party, physicist Claudia Sheinbaum – the former mayor of Mexico City, who, also on Wednesday, defeated the other five candidates for the nomination in a series of national polls organized by the party – will run against her main rival, another woman: the popular Senator Xóchitl Gálvez, half indigenous and of humble origins, the candidate of a coalition formed by the Party of the Democratic Revolution, the National Action Party and the Institutional Revolutionary Party.

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