Mexico’s Exciting Supreme Court Win for Women and Girls’ Access to Abortion

“This sets a precedent for the whole country. This gives us hope and empowers victims of rape because they know now that the court is on their side.”

Marimar* was 17 years old when she was raped and impregnated by her attacker. She reported the crime to the authorities in Morelos, Mexico where she lived and requested an abortion. The prosecutor’s office sent her to the hospital. Although abortion is legal in the case of rape in Mexico, the bioethics committee at Cuernavaca General Hospital where she sought help kept her in the hospital for two weeks, eventually denying her an abortion.

In 2016 Fernanda* was raped by an acquaintance and became pregnant. She requested access to an abortion, several times, from the health services of Oaxaca. The hospital was on strike and did not do anything but acknowledge receipt of her requests. Fernanda, like Marimar, was denied access to abortion care.

These young women had the right to a legal abortion in all 32 states in Mexico. Mexico has a federal “victim’s law” which allows a woman or girl, older than 12 years old who has suffered sexual assault and become pregnant, to access abortion from any public health center. The law does not require her to file a report with the police or receive authorization from the court, nor parental consent, in order to get the abortion. The law, in fact, defines abortion care under these circumstances as “emergency medical services.”

Why then were they denied access to legal abortion?

Distressingly, Marimar and Fernanda are far from alone. According to a report from the Mexican organization CREA (The Executive Commission of Attention to Victims), one in four girls is sexually assaulted before the age of 18 years old, in Mexico. The majority of pregnancies in girls under age 14 are the result of rape. Still, women and girls who become pregnant as a result of a rape are routinely denied access to legal abortion in the country. Mexican reproductive rights organization GIRE (Information Group on Reproductive Choice) notes that between 2009 and 2016, 111,413 complaints were received by the state from women and girls who had been raped, sought a legal abortion and were denied services. Only 63 legal abortions were reported by the health system during that same time period.

Since 2015, hundreds of women in Mexico have been prosecuted for illegal abortion.

Mexico is home to some of the strictest abortion laws in the world. However, laws governing legal abortion vary from state to state in the country, setting the stage for friction between state and federal law, the insertion of health care providers’ personal belief systems, and a powerful anti-choice movement. If you live in the United States, no doubt this sounds familiar.

Marimar and her parents took her case to court with the help of GIRE. This young woman survived a rape only to be subjected to discrimination and, what GIRE called “cruel and inhuman treatment” by the hospital when she sought legal abortion care. It took three years and her case made it all the way to the Supreme Court. It was too late for her to have an abortion of course, but Marimar’s bravery paved the way for the first-ever Mexican Supreme Court ruling regarding the denial of a woman’s access to abortion.

According to GIRE, earlier this month the Supreme Court cast five unanimous votes in favor of Marimar’s legal stay, “thus recognizing that the denial of a legal abortion after rape constitutes a violation of reproductive rights.” In their decision, the justices seem to be confirming UN reports condemning lack of access to abortion as torture.

Days later, the Mexican Supreme Court ruled in Fernanda’s case (also a GIRE case). And, once again, the Supreme Court upheld Mexican law declaring that public health institutions must guarantee the right to an abortion to women and girls who have been raped and impregnated as the result of the attack.

Suprema Corte de Justicia de la Nación (SCJN) (Supreme Court of Justice of the Nation) in Mexico City

These are major rulings for the rights of women and girls in Mexico, our neighbor to the south.

Regina Tamés, Executive Director of GIRE, told me of the cases, “This sets a precedent for the whole country. This gives us hope and empowers victims of rape because they know now that the court is on their side.”

Providing hope and support to survivors of sexual assault in the country is needed and powerful. But these court decisions have the potential to do more. Tamés said that with these rulings the court is “scolding local authorities” so that they think twice before refusing to provide abortion services to women and girls, regardless of where in the country they live. The hope is that they make clear that denial of legal abortion care will not be tolerated.

As it stands now women and girls in Mexico suffer massively from the lack of accountability.

Despite federal law, women in Mexico are consistently prosecuted and convicted not only for having abortions, after being raped, but for having miscarriages classified as murder. Since 2015, according to numbers published by GIRE, 625 women have been prosecuted for illegal abortion. Adriana Manzanares is an indigenous woman who lived in Guerrero. Manzanares suffered a stillbirth but her father accused of her getting an abortion. Despite the fact that she did not speak Spanish (she spoke an indigenous language) and so could not understand court proceedings, she was prosecuted, convicted of murder, and sentenced to 27 years in prison. Adriana was released after five years when an advocacy group stepped in to assist her — while the humiliation and cruelty of a system that refuses to accept women’s bodily autonomy remains.

Mexico’s state laws offer little compassion for girls as young as ten years old who become pregnant forcibly and can be literally deadly.

The trajectory of Mexico’s abortion laws are likely familiar to reproductive rights advocates in the United States. In 2008, Mexico City passed the most permissive abortion laws in the country. Women and girls have access to legal abortion for any reason through the first trimester and for free from the Ministry of Health’s public program (and on a sliding scale fee for those who are not residents of Mexico City).

Anti-choice activists immediately went on the defensive and fought back with extreme legislation designed to outright ban abortion — even when a woman or girl’s life is endangered by the pregnancy. A wave of personhood amendments (laws that define life as beginning at conception, thereby elevating a fetus’s “right to life” over a woman’s or girl’s life) spearheaded by the strong Catholic, anti-abortion lobby, passed in state constitutions throughout the country. Currently, seventeen states throughout Mexico have personhood laws, including Oaxaca where Fernanda lived.

In 2016 in the state of Veracruz, thanks to the controversial governor at the time and the Catholic Church, a constitutional amendment passed that defined life as beginning at conception, effectively banning abortion completely. Although laws like the ones in Veracruz and Oaxaca are supposed to operate with exceptions for federal law, they are often not implemented that way.

The consequences of the clash between Mexico’s federal law which offers a modicum of protection for survivors of sexual violence and its state laws which provide no compassion for women and girls as young as ten years old who become pregnant forcibly, can be literally deadly for women and girls in the country.

Complications related to pregnancy and childbirth are the leading cause of death for girls and women globally. The chance of dying during pregnancy or childbirth, for girls 14 years old or younger, is twice as high as for older woman.

Still, Tamés remains optimistic. “We should celebrate every victory. These [Supreme Court decisions] are huge. They have made it clear that when a survivor of rape is denied access to an abortion, her human rights are violated.”

GIRE has two more abortion-related cases waiting for Supreme Court review. But the two recent decisions have implications for abortion access across the country and set a successful stage for continuing the fight for reproductive rights in Mexico. If a woman’s or girl’s human rights are violated when denied access to a safe and legal abortion after she’s been raped, her human rights are violated when denied access to a safe and legal abortion in any scenario.

*Names have been changed for privacy.