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IV. Abortion in Mexico

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.  Every single public official Human Rights Watch interviewed for this report conceded that abortion after rape is a woman’s right, and public opinion polls consistently show that the majority of the Mexican population supports this right though many are unaware it is currently guaranteed in the law.

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.⁹¹  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.⁹²  This would constitute approximately 30 percent of all pregnancies in a year.⁹³  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 850,000.⁹⁴  Meanwhile, government figures dating from 1995 estimate that only 100,000 clandestine abortions are carried out each year.⁹⁵

Legal Framework, Public Debate, and Occurrence

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.⁹⁶

Due to Mexico’s federal structure,⁹⁷ 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.⁹⁸

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:

• the abortion is the result of negligent behavior on the part of the pregnant woman (valid in twenty-nine states);
• to save the life of the pregnant woman (valid in twenty-seven states);
• the fetus has serious genetic malformations (valid in thirteen states);
• to protect the health of the pregnant woman (valid in ten states);
• the pregnancy is the result of non-consensual artificial insemination (valid in eleven states); and
• where the woman already has three other children, for economic reasons (valid only in Yucatán).

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.⁹⁹  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.¹⁰⁰  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.¹⁰¹ 

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.¹⁰²  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 2002.¹⁰³  In January 2002, the Supreme Court declared the law constitutional.¹⁰⁴ 

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 2005.¹⁰⁵  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.¹⁰⁶  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.¹⁰⁷

The congressional debates on abortion in Guanajuato, Morelos, and the Federal District in 2000 happened in the midst of a larger public debate on abortion after rape, a debate sparked by a controversial case originating in Baja California: the so-called Paulina case.  Paulina Ramírez Jacinto was fourteen when she was raped in 1999 in Baja California Norte.   Despite having procured—after much back-and-forth—the needed authorization from the state attorney general’s office, Ramírez did not receive the abortion to which she was legally entitled because of sustained pressure from anti-abortion groups and individuals.  The case caused a national uproar when Ramírez publicized what had happened through the human rights ombudsperson in Baja California Norte and the press. ¹⁰⁸  Public opinion surveys at the time and since show the Mexican population to be generally in favor of legal abortion after rape, which may have contributed both to the veto of the stricter law in Guanajuato and to Morelos’ governor’s backing down on his threat to veto abortion access procedures.¹⁰⁹

Prosecution for Illegal Abortions

Yes, of course we implement [the penal sanctions for illegal abortion]. … If anyone goes to jail, it is the woman.
—Deputy Attorney General, San Luis Potosí¹¹⁰

Officials in most states told Human Rights Watch they do not maintain specific data on the number of women in prison for the crime of abortion.  It is likely that only a small portion of the estimated hundreds of thousands of girls and women who undergo clandestine abortion in Mexico each year go to jail.  Nevertheless, prosecutions of girls and women who have had illegal abortions are not unknown.¹¹¹  “From August to December 2005, we have had ten women here [charged] for illegal abortion,” said Carmen Hernández Rosas, head of the forensic medical team in Guadalajara, Jalisco.¹¹² 

In stark contrast to the dismissive attitude and delays victims of domestic and sexual violence experience when they seek redress for crimes committed against them, justice seems to be relatively swift when the state decides to prosecute for illegal abortion.  In Guanajuato, a public official who spoke on the condition of anonymity, said:

There are five women [currently] in jail for abortion [in Guanajuato]. … [In one case] a woman … gets to the hospital with very strong hemorrhaging, and the first thing the doctor does is to report her [to the authorities]. … They arrest her very fast, and they sent her to jail for a week [pre-sentence detention].  Why is it that when it is a rape case, everything is so negative, [and] they don’t do anything. … And in those cases [of illegal abortion], everything is so fast?¹¹³

Guanajuato’s attorney general denied that any women have been sentenced for abortion over the past five years in that state or are currently in jail for that crime.¹¹⁴

“Ana Díaz,” a twenty-nine-year-old woman from Yucatán personally experienced the priority authorities give to investigations of presumed illegal abortions as compared to reports of domestic violence. When she attempted to file a complaint against her now ex-husband for domestic violence, the public prosecutor told her that there was not enough proof, despite the fact that “I was all black and blue, all beaten up.”  The public prosecutor took her declaration once, and, according to Díaz, then did nothing.  In contrast, one year later when she went to a public hospital with hemorrhaging, the public prosecutors suspected an illegal abortion and seemingly spared no effort to prove her crime:

At 7:30 p.m. they [the doctors] did the curettage [to clean me out]. … And then it all started, the hardest part. … I was still more or less sleepy after the anesthesia. … I saw a person, he said can I ask you questions, and I said yes. … [I said] I didn’t know that I was pregnant. … In fact, I had gone four times to [the health center linked to my] social security and they had told me it was my colon [that made my stomach hurt]. … [The public prosecutors] took my declaration, one time. … Then two more persons came, one was a chemical expert from the public prosecutor’s office, and another person also from the public prosecutor’s office, and once more I had to give the whole explanation. … Then two-three hours later, again.  I think they came back four or five times. … At 6:30 in the morning they were still there. … They signed me out at about 10 o’clock and I still had to go to the public prosecutor’s office to see where they had the [fetal remains]. … There I had to do another interview with who-knows who. … He said that I couldn’t leave because they might need me for another declaration. … I said that I just wanted to be with my family.  From 10 o’clock in the morning until 6 o’clock at night, they finally let us out. …  My sister says that when they came [to my home] to inspect the bathroom, they measured it, they looked through the trash, they collected water from the waste-pipe, to see if there were remains of blood. … Look at the difference [from when I declared against my husband]!¹¹⁵

In total, Díaz was questioned for more than fifteen hours though ultimately was not charged with a crime.