Published in Proceso

Mexico City’s abortion law gives women a vital choice. For some, the ability to exercise this choice may mean the difference between life and death. The upcoming Supreme Court decision on the constitutionality of this law will determine if all women and girls in the capital can continue to access abortion services in bona fide medical facilities with qualified professionals under sanitary conditions, or some will be forced to revert to unsafe and often hazardous practices with unlicensed practitioners in clandestine clinics, pharmacies or marketplaces.

Women who do not have the possibility to access safe and legal abortions face the dangers of clandestine abortions. Unsafe abortion practiced in unsanitary conditions can expose women to numerous risks, including health complications like excessive bleeding, infections, uterine perforation, septic shock, infertility, and even death. According to information from six Latin American countries, five to 10 of every 1,000 women in the population are hospitalized annually for treatment of complications from an induced abortion. But women are also exposed to high fees for clandestine services, lack of redress for ill-performed procedures requiring post-abortion care, stigma and discrimination from having sought illegal and therefore unregulated health care services, and possible fines or prison sentences.

Fortunately, unlike their counterparts in the rest of the country, women in Mexico City are no longer in that situation. Since April 2007, women and girls who may otherwise have chosen to end an unwanted pregnancy in dangerous and covert circumstances, have been able to avail of appropriate and safe abortion services now part of the public health care system. Of those women, 86 percent are from Mexico City and 14 percent come from elsewhere within the country, with at least one woman registered from Guatemala. Contrary to popular belief, only five percent of those women were under 18.

When making the decision to terminate their pregnancies during the first twelve weeks, all these women have exercised a myriad of rights, including the right to life, the rights to health and health care, the right to non-discrimination, and the right to decide the number and spacing of children.

Those who oppose the Mexico City law argue that a woman’s exercise of these fundamental rights should be subordinated to the right to life of the unborn. But that would be to deny women core protection which human rights law intended them to enjoy.

Most international human rights instruments are actually silent about the starting point of the right to life. The general consensus among international jurists, and as set out in precedents in case law, is that the right to life, as contemplated by these treaties, is not intended to apply before the birth of a human being. In the case the American Convention on Human Rights—which is the only international instrument that contemplates the application of the right to life from the moment of conception—the Inter-American Commission on Human Rights has determined that this treaty provision does not provide a basis on which to deny a woman’s access to safe and legal abortions.

Moreover, international law guarantees women the right to the highest attainable standard of physical and mental health. United Nations treaty bodies have commented on the negative impact of unsafe abortions and restrictive abortion laws on health, encouraging the liberalization of abortion laws in certain cases that affect women’s physical and mental health. The right to health requires that information as well as services be made available, accessible, acceptable, and scientifically appropriate of adequate quality. Laws and policies that restrict safe abortion services constitute poor public health policy and put women at risk of poor health outcomes.

Access to all forms of reproductive health services, including terminations, is also essential to the protection of women’s rights to non-discrimination and substantive equality. In practice, women are more likely than men to experience personal hardship as well as social disadvantage as a result of economic, career, and other life changes when they have children. Where women are compelled to continue unwanted pregnancies due to barriers to safe and legal abortion services, women are put at a further disadvantage. The Committee on the Elimination of Discrimination against Women (CEDAW Committee), which interprets the Convention on the Elimination of All Forms of Discrimination Against Women, has held that restrictive abortion laws are contrary to the right to nondiscrimination in access to health care. In the case of Mexico, the CEDAW Committee recommended in 1998 “that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion.”

The right of women to decide on the number and spacing of their children without discrimination can only be fully implemented where women have the right to make decisions about when or if to carry a pregnancy to term without interference from the state. According to the CEDAW Committee, for this right to be fulfilled, women must also have access to comprehensive family planning and abortion as part of a full range of reproductive health care services.

The rights to life, health, non-discrimination and to decide on the number and spacing of children are also enshrined in the Mexican Constitution since 1974. Thirty-four years later, Mexican women are still struggling to protect those rights. The Supreme Court, which has recently adopted some very important human rights decisions, now has a landmark opportunity to preserve the reproductive rights and lives of women and girls in Mexico City and place Mexico at the forefront of the protection of women’s rights in the region.