Abortion is a crime in Mexico, and women in some states continue to be prosecuted for it. At the same time, all jurisdictions establish some exceptions for the general criminalization of abortion, and all penal codes permit legal abortion for rape survivors.
As in most countries where abortion is criminalized, estimates on the prevalence of abortion vary widely. In 2003, the Autonomous National University of Mexico (UNAM) published a study estimating that approximately half a million girls and women undergo abortion (both legal and illegal) every year in Mexico. In 2005, UNAM updated its study, concluding that the previous figure had seriously underestimated the prevalence of abortion and that the annual number of abortions in Mexico was closer to one million. This would constitute approximately 30 percent of all pregnancies in a year. An estimate published by the Latin American Center on Health and Women (Celsam) concluded in 2004 that the annual number of abortions was between half a million and 850,000. Meanwhile, government figures dating from 1995 estimate that only 100,000 clandestine abortions are carried out each year.
Mexico’s constitution protects the universal right to decide on the number and spacing of one’s children, and the general health law from 1984 (last amended in 2004) establishes a duty on public health clinics and hospitals to provide a relatively wide range of contraceptives free of charge.
History of Mexico's Laws on Abortion
Abortion has constituted a crime in Mexico at least since 1931. The initial federal law, still on the books, makes abortion punishable with one to three years of imprisonment when carried out with the pregnant woman’s consent and three to six years when carried out without consent. Both women and abortion practitioners can be prosecuted for this crime. The 1931 penal code waives all criminal penalties for abortion after rape where the pregnant woman’s life would be endangered by a continued pregnancy or where the abortion is the result of negligent behavior on the part of the pregnant woman.
Due to Mexico's federal structure, the federal penal code provisions on abortion are generally irrelevant to the treatment of this issue at state level and would only apply if the abortion were carried out under exclusively federal jurisdiction. Nevertheless, the 1931 penal code has served as a model for state penal codes. As of January 2006, all state penal codes criminalize abortion both for the pregnant woman who procures the abortion and for the health professional who provides it. Applicable penalties vary from state to state, but the most commonly mandated sentence is anywhere between six months and five or six years. In eleven states, as well as in the federal penal code, the sentence is substantially lower when the woman who aborted "does not have a bad reputation," when the pregnancy was the result of a sexual relationship outside of marriage, and when the woman had managed to keep the pregnancy secret.
All states waive penalties for abortion in at least one circumstance: where the pregnancy is the result of rape. Other reasons for waiving the penalty for abortion are:
For almost seventy years, the laws on abortion remained virtually untouched. A number of important developments on the criminalization of abortion have happened since 2000. In August 2000, the Guanajuato Congress approved reforms that eliminated the possibility for legal abortion after rape, though the governor of the state vetoed the law a month later amidst national furor. In the same month, after much public debate, the Morelos Congress approved an additional article for that state’s criminal procedure code which sets out procedures for access to legal abortion. Despite having threatened to do so, the governor of Morelos, under pressure from women’s groups and health advocates, did not veto the new procedures.
Also in 2000, the head of government in the Federal District, Rosario Robles, proposed an amendment to the penal code and the criminal procedure code of the Federal District to lower the penalties for criminal abortion and oblige public health authorities to provide access for abortion after rape. The bill—dubbed the “Robles Law”—was approved by the local congress, entered into force, and was immediately subject to a claim of unconstitutionality before Mexico’s national Supreme Court. This lawsuit stalled the implementation of the law until 2002. In January 2002, the Supreme Court declared the law constitutional.
Legal reforms in two jurisdictions were aimed at further guaranteeing the right to abortion after rape. In March 2005, Baja California Sur reformed its penal code to include an additional exception for the criminalization of abortion—where the woman’s health is endangered by the pregnancy—and to establish lower penalties for illegal abortion. Baja California Sur also reformed its criminal procedure code to include specific procedures for access to legal abortion after rape. These reforms entered into force in September 2005. Both Baja California Sur (in 2005) and Mexico City (in 2003) reformed their general health codes to include an obligation to provide abortions free of charge in public health institutions in those cases where abortion is not subject to penal sanctions, including after rape. Most developments toward decriminalization of abortion have occurred only after years of organizing and pressure by women’s rights activists and despite staunch opposition from conservative groups.
Federal legal provisions on abortion currently in forceChapter VI
Article 329. - Abortion is the death of the product of conception at any point during pregnancy.
Article 330. - He who causes a woman to abort will be punished with one to three years imprisonment, regardless of how the abortion was caused, and where the woman consented. Where there is no consent, the imprisonment will be from three to six years, and if he used physical or moral violence the criminal will be subject to six to eight years’ imprisonment.
Article 332. - The mother who voluntarily obtains an abortion or consents to someone else causing the abortion will be subject to six months’ to one year’s imprisonment, if these three conditions are fulfilled:
Where any one of these conditions is not fulfilled, she will be subject to one to five years’ imprisonment.
Article 333. - Where the abortion is the result simply of the negligence of the pregnant woman, or where the pregnancy is the result of a rape, the abortion is not punishable.
Article 331. - If the abortion is caused by a medical doctor, a surgeon, a midwife, or an obstetrician, in addition to the corresponding sanctions in the prior article, the person will be suspended from exercising his profession for two to five years.
Article 334. - No punishment will be applied where, according to the doctor assisting the woman, the pregnant woman or the product [fetus] would run the risk of dying unless the abortion were performed; as supported by the opinion of another doctor, wherever it would not be dangerous to wait [for such opinion].
More information on women’s reproductive rights in MexicoThe organizations listed may or may not support legal reform to make abortion safer and more accessible. The opinions voiced by these organizations do not necessarily reflect the position of Human Rights Watch.
What You Can Do
Write Mexico’s President-elect, Felipe Calderón, to urge him to guarantee access to safe abortion services where abortion is currently permitted under Mexican law. Tell Mr. Calderón to implement the recommendations submitted in 2006 by the United Nations Committee on Economic, Social, and Cultural Rights (CESCR) and the United Nations Committee for the Elimination of Discrimination against Women (CEDAW). These expert committees have asked Mexico to:
You can find a model letter here.
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