ALTHOUGH IN THE LAST decade there has been an international trend toward liberalizing abortion policy, in Latin America complex differences continue to exist between countries in the region. Since 2006, abortion has been permitted in Colombia when a woman's health is at risk, in the case of rape or incest and severe fetal impairment, whereas previously it had been prohibited without exception. During the same year, the Nicaraguan Congress left women to the "will of God" by banning abortion, even to save a woman's life. More recently in Mexico, in the midst of the most intense, wide-reaching public debate on abortion in its history, Mexico City's legislature voted to decriminalize abortion during the first 12 weeks of pregnancy.
The landmark reform was approved on April 24, 2007, by a two-thirds majority of the legislature, with support from five political parties. It not only decriminalizes abortion during the first trimester, but also reduced punishment for women who procure an abortion after this period. This inclusive bill also requires the Mexico City Ministry of Health (MOH) to provide legal abortion services, free of charge, to any woman who lives in Mexico City, even if she is covered by other public or private insurance, and at a moderate rate for women from other states of the country and foreigners. Moreover, this reform also guarantees sexuality education and campaigns on reproductive and sexual rights, the availability of contraceptive methods, and counseling for all women considering an abortion. These changes put Mexico City at the forefront of abortion liberalization in Latin America and the Caribbean, on par only with Cuba, Guyana and Puerto Rico, and represent a comprehensive approach to preventing unwanted pregnancies, while at the same time respecting women's right to decide.
CONTEXT AND STRATEGIES
The reform in Mexico City resulted from a combination of social and political factors that aligned at the right time and in the right place: a dominant, left-wing party in the Mexico City Legislature in an environment of political polarization between the left and right wing, an international human rights framework in favor of abortion rights and, above all, more than 35 years of consistent struggle by the feminist movement, the women's movement and allied civil society organizations to put abortion rights on the public agenda. Over the years, a broad range of perspectives on public health, bioethics, philosophy, human rights, social justice, and secular and Catholic prochoice arguments were developed in support of safe and legal abortion. Such diverse arguments helped prochoice advocates educate the public, the media, legislators, the health sector and the judicial branch about the complexity of the issue.
A gradual approach to harmonize abortion indications throughout the country was also critical. The recent reform cannot be explained without taking into account the reforms to the Mexico City Penal Code in 2000 and 2003, which incorporated other indications for legal abortion and regulated conscientious objection for the very first time in Mexico. (The 2000 and 2003 reforms decriminalized abortion when pregnancy threatens a woman's health, in the case of severe fetal malformation and nonconsensual artificial insemination. Prior to these reforms, accidental abortion, which refers to any unintended action that results in miscarriage, and abortion when pregnancy is a result of rape were not considered punishable offenses.) These changes had already put Mexico City at the vanguard of reproductive rights in Mexico at large.
The case of Paulina, a 13-year-old girl who was raped, became pregnant, was denied a legal abortion by public authorities and forced to carry her pregnancy to term was also important in this process. Paulina's case helped establish abortion rights as human rights when the Mexican state, in recognition that her rights had been violated, signed an agreement between her legal representatives, the Mexican state, and the Inter-American Commission on Human Rights.
A critical aspect of the political timing was the highly disputed presidential election in July 2006. The conservative National Action Party candidate, Felipe Calderon Hinojosa, won by a very slim margin amidst reports of fraud, leading the progressive candidate of the Democratic Revolution Party (PRD), Andres Manuel Lopez Obrador, to contest PRD election results. Since the PRD maintained control of the Mexico City Legislature and the mayor's office after the election, there was the sense that there was much to gain and little to lose by demonstrating the difference between these political parties on reproductive rights issues through supporting changes in the law. It is important to underscore that the PRD could have pushed the bill through due to its own majority, but instead its representatives allowed the proposed law to be publicly debated for four months, building cross-party support in a process which went beyond the feminist movement. Critical to the success of the reform bill was its focus on preventing unplanned pregnancy, which allowed consensus-building among a diverse public, including intellectuals, artists, physicians, lawyers, academics, youth and men. The support of journalists, TV presenters and opinion leaders who had not addressed this issue before was especially impressive. These factors gave the law considerable legitimacy once it was approved.
Other critical factors in the bill's debate and approval were the long-established separation of church and state in Mexico, combined with scandals around pedophile priests that debilitated the Catholic hierarchy and weakened its public image for a period of time before the bill was proposed.
During the debate, the hierarchy vocally denounced the reform and its discourse became increasingly aggressive, especially to legislators who were threatened with excommunication if they voted in favor of the law. The hierarchy retracted these statements when it was revealed that canon law includes mitigating factors for women who have an abortion and states that a person cannot be punished for what he or she thinks. Many people saw these desperate efforts as bullying and disrespectful, particularly in the context of the church's poor track record on standing up for the human rights of those abused by its own priests. The vocal antichoice community also had been discredited several years prior to the reform as a result of various nongovernmental organizations' disclosure of misuse of $3 million in public funds by the self-styled Pro-Vida (ProLife) organization that led to a lawsuit and discredited any public statements it made.
POST-REFORM: SERVICE PROVISION, UNCONSTITUTIONALITY CLAIMS AND EXPANSION TO STATES
Three days after the exhilarating victory, by April 27, 2007, legal abortion services were already in place at 14 public hospitals run by the MOH in Mexico City. To date, a year since the passage of the law, more than 13,000 women have had access to information and counseling and approximately 6,000 women have chosen to terminate a pregnancy. According to health ministry statistics, 85 percent of these women are Catholic, 26 percent are students, 29 percent are employed and 38 percent are housewives. An important fact is that only 6.2 percent are under the age of 18. These figures have been published in national newspapers, thus helping to debunk myths about women who have an abortion and ultimately destigmatize this issue.
Service provision has not been without its challenges. Some doctors have refused to perform abortions, while antichoice organizations have set up stands outside some public hospitals and aggressively distribute inaccurate information about the risks of abortion. Nevertheless, the level of commitment demonstrated by those involved in promoting the reform has been impressive; Mexico City legislators, government officials, especially the mayor and the minister of health, and even the president of the Mexico City Human Rights Commission, have become strong and open advocates for women's right to decide, which is unprecedented in Mexico.
Since the passage of the law, two abortion-related deaths have been reported: one self-induced abortion with complications prior to hospitalization and another related to a legal abortion procedure in a public hospital. Clearly this is extremely disturbing. However, despite these tragic cases, unpublished estimates comparing health ministry statistics on abortion-related deaths in previous years with the two deaths that have taken place since April 2007 suggest that the risk has been reduced drastically since the new law has been in effect. Officials at the health ministry have redoubled their efforts and prioritized the standardization of procedures in all public hospitals. In addition the ministry monitors compliance with service guidelines and trains providers to offer easy-to-access and respectful abortion care.
A month after the vote, on May 25, 2007, two public agencies, the National Human Rights Commission and the Federal Attorney General's Office, presented challenges to the bill's constitutionality before the National Supreme Court. Their cases are essentially based on three arguments: 1) the Mexican Constitution defends life from the moment of conception; 2) the reforms ignore men's right to fatherhood; and 3) the Mexico City Legislative Assembly does not have the authority to create health legislation.
The court has scheduled its internal debate on this unconstitutionality claim for late spring 2008. To overturn a law of this type, eight of the II justices, or a super majority, would need to vote it down. Because of the current make-up of the court, and because of the strong social and legal arguments in favor of the reform, we are cautiously optimistic that the law will be upheld. It is highly probable that the final resolution of the Supreme Court will have a ripple effect in other states in Mexico. Since Mexico is a federation, the liberalization of abortion will have to take place state by state; no federal law can legalize abortion nationwide as has happened in other countries. Although the future of abortion rights will rest on the political will of public officials in each state, a positive Supreme Court decision will provide a strong foundation for allowing women throughout Mexico to decide about their reproductive lives in an environment which respects their dignity, integrity and, ultimately, their right to lead a full and healthy life.
Quotes from the day of the vote, April 24, 2007:
"For you my sisters, for those who have gone before us and for our rights--in favor."
"Because human dignity requires freedom--in favor,"
"For the free will that God gave us and for the lay state--in favor."
"For all women and my mother who is here today--in favor."
"The decision to terminate a pregnancy can only derive from a woman's inner authority, her conscience...l will vote in honor of my grandmothers, my mother, my daughters and their daughters."
"It is necessary to distinguish between individual responsibility before a moral dilemma and the responsibility of the state in the presence of a social problem.., To vote in favor of this bill, a result of decades of struggle by brave women...is to reject double standards and address a public health problem."
MARIA CONSUELO MEJIA is the director of Catolicas por el Derecho a Decidir (ODD, Catholics [or the Right to Decide) in Mexico.
MARIA LUISA SANCHEZ is the director of Grupo de Informacion en Reproduccion Elegida (GIRE, Information Group on Reproductive Choice).…