In Mexico, the Supreme Court ruled on September 7 to decriminalize abortion at the federal level. We talked with Lucía Melgar, a feminist from Mexico’s Academics in Critical Action, about this decision and its impact on women’s access to abortion rights in Mexico.
Can you introduce yourself and the organization you work with/ are a member of if any?
I am Lucía Melgar, an activist for women’s rights, a cultural critic and literature and feminist studies professor and researcher. I cofounded the informal organization Académicas en Acción Crítica (Academics for Critical Action) which has aimed to establish dialogues between academia and NGOs and to promote women’s rights, especially Sexual and Reproductive Rights, and to stop Machista violence, especially feminicide.
Before this decision, what kind of legal amendments have happened so far regarding the abortion laws in Mexico?
For many years Mexico had a basic legislation which allowed for legal abortion in case of rape (valid in all 31 states), in case the life or the health condition of the mother is jeopardy (valid in 30 or 29 states). Besides, each state could allow legal abortion for some other reasons, such as poverty (2 states) , forced impregnation, and some other few. The first main change was gained in Mexico city in 2007 when the local congress approved two reforms on the Health Legislation and on the local penal code, by which abortion was allowed upon request (without any legal exemption) up to the 12th week. This is why it is also called voluntary abortion. A key issue here was that local public hospitals in the city had to perform such abortions at NO cost, since it was seen as a human right. For this procedure abortion through medication is the most common.
Although there were legal obstacles to these reforms, they were overcome in 2008 by a Supreme Court decision that did not qualify if abortion was a woman´s right or not but simply stated that the Mexico City authorities were legally authorized to reform the health law and the penal code and had done so without transgressing the Constitution. After this historical decision, right wing groups promoted legal reforms at the state level since 2008-2010, which stated the State (local) obligation to “protect life from conception to death”) which meant abortion was not allowed (except for the cases already approved I each state). This conservative wave led to more than 20 states with such clause in their constitution or penal code.
Fortunately, there was a new green wave from 2016 on mostly and up to now, ten states have approved legal abortion up to the 12th or 13th week. Also, the Health Ministry has published new norms to make sure that public hospitals guarantee abortion access in cases of rape, this was done last year and is being enforced with some success, not completely though because there is still resistance to abortion even in cases of rape amongst Churches and also civil servants in the judiciary.
Another important change, before the decision this year, was made last year when the Supreme Court determined that the restrictive legislation of two states was unconstitutional and that no state could criminalize a woman for having an abortion. This time, several women judges analyzed the issue and stated that abortion is a woman’s human right.
What does this decision bring about? How will it transform institutional practices?
The Supreme Court statement that abortion must be de-penalized, that Congress must proceed to approve legislation to make this possible in real terms and that the crime of “abortion” must be extracted from the penal code, is an important decision , with a lot of symbolic content. But its effects are yet to be seen as other institutions, especially Congress may or may not go ahead on this recommendation. Congress must draft or recover previous or new initiatives to decriminalize abortion in current laws, to erase it from the penal code, and must create follow-up mechanisms to make sure such new legislation is implemented. We still have to see if public federal hospitals which have avoided providing abortions in Mexico City will now provide them. Finally, we still have to see what happens at the state level regarding their own penal codes.
Do these decisions apply retrospectively? Will those harmed by previous laws receive reparations?
The law is not retrospective. It may be used to free women who may still be in jail accused of obtaining an abortion, for example. But there are usually no reparations. In fact, even in cases where reparations are clear, the Mexican state refuses to acknowledge them.
Can you tell us about the current situation regarding women’s access to abortion in Mexico?
It is very complex an issue to answer quickly because there are different conditions in different states. I can say that Mexico City’s experience has proven that state regulated legal and free abortions in public hospitals up to the 12th week bring about very good results for women and girls in terms of physical and mental health. There have been no deaths in such situation and women are usually satisfied with the service although it is not perfect. The situation in other states (such as Oaxaca, Hidalgo, Veracruz, for example) varies because there may be less clinics and also doctors and nurses may tend to victimize the women seeking abortion.
An important issue is that, in spite of Supreme Court rulings and the Health ministry directions) there is still medical personnel who resist or refuse to perform abortions even on young girls who have been raped, because of Churches’ pressures and social prejudices. It is often not a problem of conscientious objection but rather hypocrisy and machismo. Objection is allowed by law at the personal level but each hospital must guarantee that there will be at least one non-objector doctor/nurse, etc.
How do you think this decision would change the current conditions?
As stated before, it will depend on the will of Congress to legislate based on the Supreme Court ruling , at the federal level, and then for all state legislatures to follow and adapt their own laws. However, the Court’s decision has brought new impetus to the “marea verde” (green wave movement) and the broader feminist movement, so much so that new and old organizations are organizing to press local institutions to make the necessary changes. These movements have also returned to mobilizing for women’s rights.
Do you expect there to be implementation issues, which effectively sustain some of the current problems?
As stated above, yes, there may be resistance and the process will be slow, especially since we are in the midst of the 2024 electoral process and in such circumstances, legislators usually don t care much about women’s issues.
Can you tell us a little bit about the history of the feminist movement’s struggle around abortion laws in Mexico?
The feminist movement in Mexico has struggled for many decades for women’s rights: First, education, in the 19th century, as well as better wages and working conditions. Then for suffrage (in small numbers) before and after the Mexican 1910 revolution, to no avail- Then for suffrage in the 30s through a vast alliance of all kinds of women, a struggle that almost reached its goal in 1938 but was defeated because the government feared women would vote for conservative candidates. The next step for suffrage was won in 1947 when women were allowed to vote at the municipal level, and could also be elected, and finally in 1953 when they were granted universal suffrage rights. Besides these fights, in the 70s women organized against domestic violence, rape, for higher sanctions against sexual violence. In the 90s and 2000s the main issue was equality, participation in political life; later, the right to live without violence , and always demands for better working conditions, equal wages, support for working mothers, among others.
How do you think the feminists’ struggle in Latin America has affected this decision?
Argentina’s advances are no doubt important for the Mexican and regional context. Argentina’s feminists success has brought hope among young Mexican activists. These and other gains as well as the stagnation or backlash in some countries have also shaped some of the discussions everywhere.