Friday, October 4, the Petrie-Flom Center will host “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” from 8:30 AM to 12:30 PM. This event is free and open to the public, but registration is required.
By Adriana Ortega Ortiz
In Mexico, abortion is a state-law matter. It is considered a crime in most of the Mexican states except for Mexico City and Oaxaca where abortion is permitted within the first trimester of the pregnancy.
In the rest of the states abortion is allowed under limited legal indications: rape, health risks, danger of death, fetal impairment, and distressing economic situations. The legal indications are similar but not identical in the Mexican territory. The only legal indication for abortion that applies in every state is rape.
In this context, what makes the recent abortion ruling of the Mexican Supreme Court important?
As to the facts: denial to provide abortion services due to health risks in a government-run health facility reached the Mexican Court. In this case, the Mexican Court identified three important constitutional questions:
- Must the constitutional right to health be interpreted to include the right to an abortion due to health risks?
- Is abortion on the ground of health risks as medical care a protected service and if so, does the constitutional right to health yield access to free abortion services provided by health institutions, whether public or private?
- Does the medical need for an abortion have to be assessed on grounds of physical, mental and social health?
The Mexican Court responded these three questions affirmatively. To do so, the Court relies on its jurisprudence that the constitutional right to health includes freedoms and entitlements. When it comes to abortion, the Court recognizes those freedoms to include women’s right to make free decisions regarding their personal health outcomes and the risks they are able or willing to take, once a risk of health due to pregnancy is assessed by a physician. As to the entitlements, the Court holds that women have the right to such medical assessment and to free abortion services, both to be provided by health care facilities.
The Mexican Court raised this conclusion considering the indivisibility and interdependence of human rights. Thus, it related the human right to health to the right to life, the right of non-discrimination on the basis of gender, the right to privacy, the right personal integrity, and the right to free decision making or autonomy. All of those are constitutional rights in Mexico not only as they are explicitly enshrined in the Mexican Constitution, but also because human rights treaties are the supreme law of the land in Mexico.
Once the Court held that decision regarding abortion and access to medical services when abortion is needed due to health risks make part of the constitutional right to health, it also rules that health risks must be understood in broad terms to consider physical, mental, and social health. This broad interpretation of health risk comes from the definition of health provided by the Protocol of San Salvador, a mandatory human rights treaty in Mexico. This interpretation also allows for medical professionals to consider the specific woman’s life expectations, age, poverty, and distress, among other individual challenging situations, where abortion has been understood to be outlawed, in their medical assessments.
In this point it might be worth noting that Mexican Court has not yet dealt with the main question regarding abortion when and where it is still considered a crime. That is: is criminalization of abortion a violation to women’s human rights?
This may explain the evident shortcomings of this decision, which may give rise to criticism from both extremes of the public discussion as to abortion: on one hand, as the court dealt with abortion due to health risks, it says nothing about the possible tension between the state interest in fetal life and the rights of women. A possible explanation to this shortcoming may be that the Mexican Court understood as a medically assessed and informed decision whether an abortion is needed at any stage of the pregnancy. Therefore, it decided to leave this decision to women and their health care providers. On the other hand, from a feminist point of view, it might be problematic to give such a big role to health care providers in a woman’s decision to have an abortion. This position may question and undermine women’s autonomy. Nevertheless the ruling of the Court strongly holds that women’s life expectations and understandings of well-being must — not might or should — be considered when assessing health risks.
It may be too soon to determine the effects of the ruling as it has yet to be tested against the reality of health care services in Mexico. How health care providers and facilities will react to and approach this important holding is yet to be seen. Hopefully this ruling provokes public debate, breaks ground for further constitutional challenges in this regard, and most importantly guarantees women access to safe abortion services.
Adriana Ortega Ortiz is a Clerk to the Mexican Supreme Court.