On the Global Day of Action for legal, safe and free abortion, activists promote its decriminalization in Nuevo León through a collective injunction and a citizen initiative that is presented today; meanwhile, in the absence of action by their state congresses, more entities join the presentation of amparos.
Accompanied by the Group of Information in Chosen Reproduction (GIRE), collectives of Aguascalientes, Puebla, Chihuahua, Chiapas, San Luis Potosí, Morelos, Jalisco, Sonora and Querétaro have filed legal actions to force the homologation of the state criminal codes with the criteria of the Supreme Court of Justice of the Nation (SCJN), which in 2021 declared unconstitutional, definitively, the criminalization of abortion. This week, in addition, Tabasco will be added.
With this, they will be two thirds of the entities in the country where abortion has already been decriminalized by congresses or there is already a legal action to seek the elimination of the crime by that means. Under certain conditions, voluntary abortion is decriminalized, through legislative reforms, in Mexico City, Oaxaca, Hidalgo, Veracruz, Baja California and Colima. Sinaloa, Guerrero and Baja California Sur achieved this this year; the last, thanks to a citizens’ initiative. In Coahuila, decriminalization was achieved through the SCJN’s determination to invalidate Article 196 of the local Penal Code.
Judges asked to take up the Court’s opinion
In states where amparos have already been promoted to seek the decriminalization of abortion by homologating the criteria of the SCJN, a district judge admits the matter, must study the lawsuit and request the authorities indicated to render a justified report with their response to the legal action.
“We present the amparo demands as organizations, collectives and associations just with the aim that in case of winning, which we hope will be the case, the invalidity of the crime of abortion will be declared throughout the state; unlike what happens, for example, with individual amparos that only protect one person, when we present it as collective or as organizations, we could make it apply to all the people in the entity,” explains Melissa Ayala, a lawyer at GIRE.
Once the authority submits its response, the judge is given time to study the position of plaintiffs and authorities; the former have a second opportunity to respond so that, with the full picture, the judge issues a sentence after carrying out a constitutional hearing. So far, the amparos that GIRE accompanies in the states are still awaiting final resolution.
The argument of the organizations and collectives is that the action of unconstitutionality 148/2017, in which the SCJN said that the absolute criminalization of abortion is unconstitutional, is a criterion that would have to be applied in all states.
“We are challenging the crimes of consensual abortion in states where there is absolute criminalization in the Penal Code; what we are asking the judges is that, using the arguments of the Court, they also declare these criminal types unconstitutional because, in fact, there is no window of time that allows women, children and adolescents and pregnant people to have an abortion,” says Ayala.
The Federal Criminal Code
The amparo lawsuits promoted by GIRE also include an application against the crime of abortion provided for in the Federal Criminal Code, because on many occasions federal health institutions, such as the IMSS and the ISSSTE, deny access to abortion in states where it is decriminalized on the grounds that this code prohibits them.
“While it is true that this is false, that is, according to the jurisprudential line of the Court that it already issued in the amparo in revision 1388/2015 and with the action of unconstitutionality 148/2017, access to abortion would also have to be guaranteed in federal services in those states where it is already decriminalized, in general, because it is a health service, it seemed important to us also to present these amparo claims against the Federal Criminal Code because in this way there would be no legal impediment for the IMSS and the ISSSTE to also provide this service, “explains Ayala.
At the federal level, the decriminalization of abortion is also pending, but particularly reforms to health legislation to ensure access by federal services. Following the September 2021 resolution of the SCJN, 11 senators from all parliamentary groups – including the PAN and the PES – presented a par initiativeto reform the General Law on Women’s Access to a Life Free of Violence, the General Health Law and the Federal Criminal Code.
Patricia Mercado, one of the senators promoted, told Political Animal that since the crime of abortion is of the common jurisdiction and is pursued at the state level, decriminalization in each entity is indispensable, so the most important reform at the federal level is to the General Health Law, which would guarantee abortion as a free service that would have to be offered by both the Ministry of Health and the IMSS and the ISSSTE.
Ayala points out, as additional challenges to highlight this September 28, that in addition to the battle that has taken many years for legal decriminalization, what follows is to achieve that effective, dignified and non-discriminatory access to abortion is provided as a health service.
“It is necessary to talk about the barriers that girls, women, adolescents and pregnant people are facing when they go to apply for abortion service in states where it has already been decriminalized. We have had regular meetings with the collectives of the decriminalized states, and in all of them we have found that there are the same barriers: lack of supplies, of personnel effectively trained to perform abortions in an adequate way, lack of medicines to guarantee it … We believe that this is the next step, from GIRE we are already planning legal strategies to ensure that access is guaranteed for all people who need it, “says Ayala.
It adds that, if any collective, association or organization that is dedicated to the defense of the reproductive rights of girls, adolescents, women and pregnant people wants to join the legal strategy of GIRE, it can do so through the e-mail [email protected], and the organization’s social networks are open to obtain the necessary legal, medical and psychological accompaniment.
Nuevo León: activism for decriminalization
While various organizations and collectives shape a collective protection that will be promoted in Nuevo León in the course of the coming weeks, a citizen initiative will be presented today before the local Congress. Both measures, in order for the state to stop criminalizing abortion.
Vanessa Jiménez, from the network Necesito Abortar, explains that, after winning the first individual amparo in the country last November, for a woman who at that time was not pregnant or being criminalized, and whose response will allow her not to be pregnant in the future, based on arguments of human rights, development of free personality and the right to decide, this time it seeks to do so collectively to guarantee general access, not just to one person.
“In the state there are many more women who want to seek that protection and that guarantee that forces the State, through this legal tool, to guarantee a safe and dignified abortion process,” she stresses. Jiménez recalls that last March his group accompanied the case of a woman who wanted to have an abortion due to a malformation of the product. Faced with this, they made a request to the State Health Secretariat alluding to the resolutions of the SCJN and the response was that the agency did not interpret human rights and did not apply the resolutions of the Court.
“An initiative that brings us closer to what is in Mexico City is already falling short, and I believe that with the resolutions of the SCJN we have to be thinking about strategies that repeal the crime of abortion, that no longer belongs to the Criminal Code, but all the actions add up; I think the most important thing is that it is visible, that from various points and several collectivities there is this interest in abortion no longer being a matter of criminalization, nor is it a situation for which those who live it have to go through shame, nor is it something that is not part of the health services, ” Jimenez emphasizes.
At the same time, the initiative presented in the context of this Wednesday’s commemoration, signed by Julieta Jocabeth Martínez González, proposes reforms to the local Health Law, the Criminal Code of Nuevo León and the Law for the Protection of Humanized Childbirth to Dignified Motherhood. The proposal to amend articles 327, 328, 329, 330 and 331 of the second would eliminate the offence without limitation of time. Criminalization would only be retained in the case of non-consensual or forced abortions.
Meanwhile, “the health institutions of the state will proceed to carry out the safe abortion service, free of charge and in quality conditions”, both for what is allowed in the Criminal Code and for the application of NOM-046 –which obliges the health authorities at the national level to guarantee abortion in cases of rape—, establishes the document in its proposal to reform the article 174 of the Local Health Act.
“We are making a proposal to reform a third legislation called the Law for the Protection of Humanized Childbirth and Dignified Motherhood in the state of Nuevo León. This is a little extra, because it has nothing to do with decriminalizing or legalizing, but with making visible that just abortion is also part of this protection that the state must provide, “says Martínez González.
Although the independent activist admits that the panorama in the local Legislature is adverse, after the call of Governor Samuel García to Congress so that in the discussion for the new local Constitution protect life from conception, she points out that it is important to present the approach in order to make visible, not let go of the issue and continue to promote initiatives, although they initially end up in the “freezer”. So far, 300 people and groups have signed the proposal.
For Vanessa Jiménez, despite the social advance, the state authorities have not evolved, with a governor who declares himself openly anti-rights, a Ministry of Health that ignores the broad interpretation of the SCJN and legislators who refuse to make changes. “I’m sure it’s going to happen yes or yes, whether they want to or not; reality prevails despite the negativities, because beyond the fact that abortion is a right for many, and a crime for others, abortion is a reality,” he says.
“This date reminds us that we are not free to decide on our bodies, that what we seek is autonomy, the independence to choose when to give birth or when not to do so, and we want to continue working from the collectives to continue guaranteeing the services that the State cannot yet take care of,” Concludes.
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