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LATIN AMERICA | 08-09-2021 11:36

Mexico's Supreme Court criminalising abortion is unconstitutional

Mexico’s Supreme Court unanimously declares that criminalising early-term abortion is unconstitutional, a historic decision that loosens limits on the procedure in a region where few countries offer access without restriction.

Mexico's Supreme Court on Tuesday ruled that criminalising abortion is unconstitutional in a decision hailed as "historic" by rights campaigners in the conservative Latin American country.

The court was considering a provision in the state of Coahuila’s criminal code that punished women for all abortions before 12 weeks, threatening them with one to three years in prison, no matter the reason.

The unanimous vote opens the way for women across Mexico to access abortion without fear of being prosecuted and potentially imprisoned.

"It is one more step in the historical struggle for [women's] equality, dignity and the full exercise of their rights," said court president Arturo Zaldivar.

He said that "from now on it will not be possible, without violating the criteria of the court and the constitution, to prosecute any woman who aborts in the cases that this court has considered valid."

“No-one gets pregnant, exercising their autonomy, so they can later get an abortion,” said Justice Margarita Rios Farjat. “In the name of life, women are penalised, for being ignorant, or promiscuous or for being ‘bad’ and not carrying the pregnancy to term in order to give the baby up for adoption.” 

Mexico, a largely Catholic and socially conservative country of about 130 million people, is following Argentina, where elective abortion was declared legal late last year. 

Up to now, abortion has been legal in Mexico City and three other states in the first 12 weeks of pregnancy, while elsewhere, the procedure was only permitted in cases of rape.

The declaration followed a constitutional challenge to the penal code of the northern state of Coahuila, bordering the US state of Texas, which recently banned abortion after six weeks.

The ruling will affect the whole of Mexico, allowing women in states where abortion is criminalized to undergo the procedure with a judge's order, a judicial source said.

"The woman must ask [the health services] to perform the abortion," said Alex Alí Méndez, a constitutional lawyer and expert on abortion issues.

"When they deny it, she may go before a judge... and the judge will order that an abortion be performed," Méndez told AFP.

Mexico's states have autonomy to dictate their laws, but they are invalidated if they contravene Supreme Court rulings that establish jurisprudence, like Tuesday's decision.

The Information Group on Reproductive Choice (GIRE), which campaigns for abortion rights, welcomed what it called a "historic ruling."

"We hope that throughout the country women and people with the ability to carry a child have the conditions and freedom to determine their reproductive destiny," it said.

Unsafe abortion is the fourth leading cause of maternal death in Mexico, according to the group.


'Controversial issue'

Two more Mexican states, Veracruz and Hidalgo, this year decriminalised abortion in the first 12 weeks of pregnancy.

Previously abortion had only been legal in Mexico City, since 2007, and in the southern state of Oaxaca since 2019.

The precedent set Tuesday will prevent courts all around the country from prosecuting women accused of voluntarily ending a pregnancy before three months of gestation. 

Mexican President Andrés Manuel López Obrador sidestepped questions about the issue at his daily press conference on Tuesday.

He said that it would not be "wise to take sides" because it is a "controversial issue" and so the best thing was for the Supreme Court to resolve it.

Among other Latin American countries, abortion is legal in Uruguay, Cuba, Argentina and Guyana.

It is banned in El Salvador, Honduras, Nicaragua, the Dominican Republic and Haiti, and allowed only in certain circumstances such as after rape or for health reasons elsewhere. 

In Chile, a court in 2017 decriminalised abortion under conditions of inviability, risk of loss of life and pregnancies resulting from rape. The latter two are also conditions under which abortions are allowed in Brazil, Bolivia and Panama.

Amnesty International said in a tweet that “this important advance for human rights is also an achievement of different feminist movements, women and pregnant people.” 

The ruling adds to a list of striking Supreme Court decisions in recent years. In June, the justices lifted a ban against the recreational use of marijuana. In 2015, the court published an opinion ruling that it was unconstitutional to ban same-sex marriage.



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