What Comes After Decriminalizing Abortion?

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Mexico’s supreme court handed down a victory for reproductive health care. Translating it into increased access is a different story.

In 2019, Aurelia García Cruceño, an 18-year-old Indigenous woman living in Guerrero, Mexico, had a miscarriage. The bleeding was so intense, according to news reports, that she lost consciousness. When she woke up in a hospital bed, she noticed that her hands and feet were handcuffed. The Guerrero Prosecutor’s Office detained her for allegedly having ended her baby’s life. She hadn’t known she was pregnant.

Aurelia’s case is tragic, and it isn’t an anomaly. It demonstrates a series of interconnected failures between Mexico’s health and legal systems, which too often accept gender violence as the status quo. Time and again, these systems restrict women’s access to reproductive health care and education—and then punish them for the consequences of their lack of access, or for trying to seek it. According to case files obtained by the feminist advocacy organization GIRE, at least 367 women were reported for abortion crimes between 2010 and 2020 in the country. Nearly 34 percent of those women went to trial; 43 percent of women who went to trial were convicted. This is almost certainly an undercount—GIRE obtained more than 3,600 case files on crimes related to abortion over the 10-year period, but 78 percent of the files didn’t specify the person’s gender, and may have also encompassed men reported for violence against pregnant women. But even these imperfect estimates provide a window into a problem with immeasurable impact.

On Sep. 6, though, the fight for reproductive justice in Mexico experienced a big win: The country’s supreme court ruled that the federal criminal penalties for abortion were unconstitutional, effectively decriminalizing abortion nationwide.

September’s ruling built on a 2021 supreme court decision that declared the criminalization of abortion in the state of Coahuila to be unconstitutional. While limited in scope, the 2021 decision set an important precedent, and activists from around the country doubled their efforts to file suits against national and local penal codes, which they claimed amounted to unconstitutional violations of their human rights. The Sep. 6 decision was the result of one of those suits.

The ruling was cause for celebration within and outside Mexico, and for good reason. But Mexico’s experience also provides an important window into the chapter after decriminalization—and all the structural and social changes that need to happen to make it a true victory. For decriminalization to really translate into a future with greater access to reproductive health care, abortion-seekers need access to psychological and social support, as well as clinics and hospitals stocked with essential drugs, supplies, equipment, and trained specialists.

The ruling also comes with plenty of caveats: Decriminalizing on the federal level is not legalizing, and even still, the measure won’t be completely official until Mexico’s congress changes the federal penal code. Abortion is still a crime in 20 out of 32 states, and the ruling only applies to the federal prosecutor’s office and federally run public health institutions like IMSS and ISSSTE, which treat those who have public medical insurance, and other public hospitals available for the uninsured. Still, this is no small thing: In 2022, federal public hospitals treated 44 percent of people seeking primary care across the country.

But this theoretical expansion of services collides with the fact that Mexico’s health care system is in crisis. In 2022, 50 million people—around 4 of every 10 citizens—had insufficient access to health services. At the beginning of the year, the government reported a deficit of more than 180,000 physicians; the waiting periods for medical appointments can escalate to months, and a consistent drug shortage has been leaving people without their medication for the past five years. The administration of President Andrés Manuel López Obrador, meanwhile, has been consistently reducing the national budget for health. This has pushed almost 49 percent of people to seek treatment in the private health sector, increasing the out-of-pocket expenses of the poorest people in the country from 30 to 50 percent between 2020 and 2022, sometimes leaving them in complete poverty.

Simultaneously, the rates of gender violence have steadily increased in Mexico. More than 70 percent of women have experienced some type of violence in their lifetimes. In 2022, the rates of sexual and family violence increased in 27 and 23 states respectively, and the country reached a new record of emergency calls reporting sexual violence. Between 2015 and 2022, reported femicides increased 127 percent.

The stress on the national health system and the growing rates of gender violence mean that millions of women in the country have no access to quality women’s health services, and many are exposed to obstetric violence. They struggle to get contraceptive methods and quality prenatal checkups, and experience unjustified cesarean sections, medical discrimination, and lack of interpreters if they speak an Indigenous language, and some have to travel great distances to the nearest health care center.

This was true for Fernanda, from Oaxaca, whose case was documented by GIRE. She was 18 when she was raped. The assault gave her the legal right to request an abortion, which she did—but she was repeatedly denied care. At one clinic, the gynecologist who refused to treat Fernanda falsely informed her that it would have been a crime to do so, according to GIRE. Another hospital also refused to perform the treatment Fernanda was legally entitled to, saying they would only accept emergency cases. Left without options, Fernanda had to travel to Mexico City to terminate her pregnancy.

All this is to say, yes, we can and should celebrate decriminalization in Mexico. But the world in which any woman—regardless of language, skin color, or socioeconomic status—can walk into a clinic, request an abortion, receive it, and feel safe throughout the process is still a distant reality. To arrive there, several things need to happen first.

To start, states need to follow the lead of the supreme court and move to decriminalize and legalize abortion locally. Legislators need to modify the federal General Health Law and state health laws to include the circumstances under which abortion is legal and the mechanisms to ensure that public and private clinics offer the service. Currently, the General Health Law and most state laws don’t address the legal interruption of pregnancy, and without a clear set of guidelines, it will be hard for hospitals to provide treatment. Doctors can still refuse to perform an abortion under the excuse that it goes against their personal beliefs, that they don’t want to go to jail, or that they don’t have the know-how, equipment, or manuals to do so. Victories in the courts need to be solidified in local laws, regulations, and programs, as well as medical education and health care operating guidelines.

One example to draw from is Mexico City’s health law, which stipulates that all women must have access to free and quality procedures to terminate a pregnancy through the 12th week of gestation, as well as counseling and reproductive health and family planning services. The Mexico City law provides that doctors can object to performing the procedure if it interferes with their personal beliefs, but they need to refer the patient to a willing doctor. (Unless it’s a life-or-death situation, in which case no one can refuse care.)

Ensuring reproductive health care access also requires informing women of their rights and supporting them physically and psychologically. Systemic gender violence and the culture of putting women’s rights on the back burner have been consistent barriers to legislating abortion and making women feel safe to request care, as they continue to face rejection, stigma, and inequities from male-dominated institutions and frameworks. For example, since 2013, Mexico’s General Victims Law has established that victims of rape in every state must be guaranteed access, if they want it, to terminate their pregnancies. In practice, however, things happen differently: When Aurelia was released in December, she had spent three years in prison for the miscarriage of a pregnancy that resulted from a rape. Fernanda, too, was unable to access the care she was legally entitled to in her home state. These overpowering gaps between the law, medicine, and women’s experiences demonstrate how far we have to go.

Source : Slate