Hi, and welcome to Telefem! It’s so nice to meet you! If this is your first time here, we want to tell you that you’re in a safe space, full of trust. We are here to answer all your questions and provide you with trustworthy information regarding safe abortion in Mexico. Let me introduce you to one of our articles, and if you still have questions, feel free to contact us through WhatsApp!
Today, I would like us to review the differences between the legalization and decriminalization of abortion since it is often confusing when we learn about new legislation regarding the issue of pregnancy termination stay here, and I will explain and resolve 5 frequent doubts about the decriminalization of abortion:
Is decriminalizing the same as legalizing abortion?
Decriminalization means removing an action from the penal code, ceasing to be a crime (in other words, you can’t go to jail). It can be total or partial. In Mexico, the decriminalization of abortion is partial since no state has eliminated the crime of abortion from its penal codes; it is only allowed up to 12 weeks of gestation (13 weeks in Sinaloa and 6 in Aguascalientes).1
Legalization is the creation of norms that regulate access to abortion in safe and dignified conditions. Like decriminalization, legalization can be partial or total, and it implies the inclusion of the benefits associated with the performance of this procedure in the health system, as well as other decisions that involve the judicial and social protection sectors.1
With this description, we can already notice that the differences are regarding non-criminalization and that there are necessary health conditions so that women and people with the capacity to gestate have the possibility of abortion, but we are going deeper with other doubts.
Does the fact that abortion is legal mean that it is no longer a crime?
Yes and no. Let me explain: In the States where abortion is decriminalized; there is a gestational limit, that is, a legal limit on how many weeks into pregnancy an abortion can be performed, which implies that if a woman decides to have an abortion after this time limit, she is committing a crime.
To understand it better, let’s use CDMX as an example, where abortion is decriminalized for up to 12 weeks and is also legal. Article 144 of the Penal Code defines abortion as a crime if it is carried out after 12 weeks of pregnancy. In Article 145, penalties of three to six months in prison or 100 to 300 days of community service are established for those who voluntarily perform an abortion or consent to a third person performing it after the established time limit.
Exclusions from criminal liability are considered in cases where the pregnancy is the result of rape when the pregnant person is in danger of serious health impairment, and when there is sufficient reason to diagnose that the fetus presents genetic or congenital alterations.2
The gestational time and grounds for exclusion from criminal liability are different in each State, so it is necessary to examine each one’s legal framework.
So, can I still be imprisoned for having an abortion?
No. At the federal level, you cannot go to jail for the crime of abortion since, in 2021, the Supreme Court of Justice of the Nation declared that it is unconstitutional to criminalize abortion in an absolute way and ruled for the first time in favor of guaranteeing the right of women and childbearing people to decide, without facing criminal consequences. This obliges state and federal judges not to continue with a criminal process.3
It is important to mention that although you cannot go to jail for having an abortion, some states can initiate a process for other crimes, such as homicide.
This happened in Querétaro, where a 14-year-old girl was raped by a relative 3 years older than her; 8 months later, she had a spontaneous abortion, went to the hospital, and was reported by the health personnel.
The legislation in most States establishes that doctors and nurses, by protocol, must notify the authorities in these cases. The local Prosecutor’s Office initiated an investigation for the crime of abortion, which was later reclassified as intentional homicide.
The dependency asked for three years in prison for the minor and economic compensation to her alleged rapist for half a million pesos, although the family reported the rape a year ago. After social pressure and the fact that President Claudia Sheinbaum herself was present on the issue, the Querétaro Prosecutor’s Office decided to withdraw the accusation of homicide and all charges against the girl.4
If you read this case with frustration, that is exactly what feminist struggles and activism try to denounce in social movements. Since it would seem that although there are laws that seek to give greater freedom to the exercise of rights, the stigma of abortion is still present in our culture, which implies that there may be limitations that society puts to prevent access to it.
Therefore, you must know that organizations like Telefem offer guidance, information, and remote medical care applicable in mexico, with training and specialization in safe abortion. If you have questions, contact us via WhatsApp!
So, if abortion is decriminalized, does that mean they will give me the service in public hospitals?
Yes, but only in federal services, ISSSTE, IMSS and PEMEX. In state health services, it will depend on whether abortion is legal.5
What is decriminalization through judicial means?
This term is being mentioned more and more in the struggles for access to abortion, to understand it, let me describe little by little what it consists of.
Mexico is divided into 3 powers.
1. The legislative branch creates laws and comprises the Chamber of Deputies and the Senate.
2. The president is part of the executive branch, which executes and enforces laws.
3. The Judicial Branch of the Federation, made up of the Supreme Court of Justice of the Nation and other courts, resolves the problems that arise when the laws are applied.6
Decriminalization through judicial means is when the judicial branch (the Supreme Court or some other body of several judges) orders the legislative branch (deputies and senators) to modify the penal code to eliminate or make changes to a law of a certain crime.7
Let’s use Jalisco as an example. Here, a group of feminists presented the Amparo in Review 344/2023 against the Penal Code of the state; on April 25, 2024, the Second Collegiate Court in Criminal Matters of the Third Circuit (a body of the Judicial Branch) resolved and determined as unconstitutional the articles that prohibit voluntary or self-procured abortion in the legislation of the entity. This judicial order obliges the Congress of Jalisco (executive branch) to repeal the crime of voluntary or self-procured abortion within its Penal Code and the Ministry of Health to guarantee the abortion service in public institutions.7
On October 4 of this same year, in a second round and with 20 votes in favor, the Congress of Jalisco decriminalized voluntary abortion from the Penal Code of the State up to 12 weeks of gestation. Its deadline was October 31; however, 28 days before the end of the functions of the LXIII Legislature, the deputies said yes to the decriminalization of abortion in the state.8
In this way, abortion was decriminalized in Coahuila, San Luis Potosi, Jalisco, Aguascalientes, Morelos, Chiapas, Nayarit, and Yucatan, where abortion was decriminalized through judicial means after the courts ordered Congress to eliminate the crime of abortion from the Local Penal Code, without this happening yet.9
And well, after this tour of legalization and decriminalization, the conclusion is also that much remains to be made visible regarding abortion. The fact is that although the advances in judicial matters have been considerable, there are still places where it is not easy for a person to access an abortion.
For this reason, you must know that we are organizations that support women and childbearing people in their decision to terminate a pregnancy. Telefem is a nonprofit organization connecting you with specialists offering nationwide remote medical guidance. Review the services that include the care of professionals and the Telefem kit with which you can exercise your right to decide and the autonomy over your body.
I hope you have resolved your doubts about the decriminalization of abortion, and do not forget that on our blog, we regularly write and inform about safe abortion. If you want to know more, I’ll wait for you at the next one!
You’re Not Alone
Keeping in touch with trained professionals makes all the difference. That’s why Telefem is here — to guide and support you. With Telefem, you’ll be safe.
Send us a WhatsApp today — we’re ready to help you.
* This content is for informational purposes only and does not replace professional medical advice and applies only to Mexico’s law and context.
References:
- La Mesa por la Vida y la Salud de las Mujeres y Grupo de Información en Reproducción Elegida (GIRE). Una mirada crítica a los modelos de regulación de aborto en la región y clarificación de términos jurídicos. II Reunión latinoamericana de causa justa la libertad es imparable. 2023. [Visit November 2024]. [Internet]. Available at: https://gire.org.mx/wp-content/uploads/2023/03/Definiciones-y-alcances-1.pdf
- González S. La despenalización del aborto en Ciudad de México: de la certeza jurídica para las mujeres y el sector salud a los bulos en redes sociales. Periódico El País. 2024. [Visit November 2024]. [Internet]. Available at: https://elpais.com/mexico/2024-11-05/la-despenalizacion-del-aborto-en-ciudad-de-mexico-de-la-certeza-juridica-para-las-mujeres-y-el-sector-salud-a-los-bulos-en-redes-sociales.html
- SCJN. Suprema corte declara inconstitucional la criminalización total del aborto. Comunicado de prensa No. 271/2021. 2021. [Visit November 2024]. [Internet]. Available at: https://www.internet2.scjn.gob.mx/red2/comunicados/noticia.asp?id=6579#:~:text=Comunicados%20de%20Prensa&text=El%20d%C3%ADa%20de%20hoy%2C%20la,decidir%2C%20sin%20enfrentar%20consecuencias%20penales
- Barragán Al. La Fiscalía de Querétaro desiste de la acusación por homicidio contra una chica de 14 años que fue violada y tuvo un aborto. Periódico El País. 2024. [Visit November 2024]. [Internet]. Available at: https://elpais.com/mexico/2024-10-30/la-fiscalia-de-queretaro-desiste-de-la-acusacion-por-homicidio-contra-una-chica-de-14-anos-que-fue-violada-y-tuvo-un-aborto.html
- Centro Nacional de Equidad de Género y Salud Reproductiva. Directorio de Servicios de Aborto Seguro. 2024. [Visit November 2024]. [Internet]. Available at: https://www.gob.mx/salud/cnegsr/articulos/directorio-de-servicios-de-aborto-seguro
- Poder Judicial de la Federación. El Poder Judicial de la Federación al alcance de los niños. 2ª. ed. Dirección General de Comunicación y Vinculación Social. Pág: 47. 2012. [Visit November 2024]. [Internet]. Available at: https://www.scjn.gob.mx/sites/default/files/material_didactico/2016-11/EL%20PJF%20AL%20AL%20ALCANCE_0.pdf
- Redacción Zona docs. Se despenaliza el aborto en Jalisco a través de la vía judicial. Periódico La Verdad. 2024. [Visit November 2024]. [Internet]. Available at: https://laverdadjuarez.com/2024/04/26/se-despenaliza-el-aborto-en-jalisco-a-traves-de-la-via-judicial/#:~:text=Se%20despenaliza%20el%20aborto%20en%20Jalisco%20a,el%20delito%20de%20aborto%20autroprocurado%20y%20consentido
- Souza D. y Zona docs. En Jalisco el aborto ya es legal. Pie de página. 2024. [Visit November 2024]. [Internet]. Available at: https://piedepagina.mx/en-jalisco-el-aborto-ya-es-legal/
- Razo J. Mapa: el aborto en México, ¿dónde es legal y dónde está prohibido? CNN en español. 2024. Visit November 2024. [Internet]. Available at: https://cnnespanol.cnn.com/2024/05/06/mapa-el-aborto-en-mexico-donde-es-legal-y-donde-esta-prohibido/