Mexico Rules Criminalizing Abortion After Rape Unconstitutional

The specific case refers to an injunction requested by a person with severe cerebral palsy and in conditions of poverty and marginalization who was a victim of rape when she was a minor.

However, the director of the General Hospital of Tapachula, in the state of Chiapas, denied her the possibility of interrupting the pregnancy resulting from the crime of which she was a victim because she was outside the 90 days after conception established in article 181 of the Criminal Code of Chiapas.

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The highest court of Justice explained in a press release that the First Chamber determined that the district judge who initially heard the court proceeding made an incorrect analysis of the case since he did not value the victim's particularities in their proper dimension by failing to act by the guidelines and directives related to gender-based perspective.

It also warned that it did not even pronounce on whether it was necessary to apply any measure or reasonable adjustment to the procedure, "and less so did it take into account that at the time of the rape, the victim was a minor, which should have led to reinforced protective measures."

For this reason, he explained, the Court declared unconstitutional Article 181 of the Penal Code of Chiapas, which allows health authorities to deny the right to abortion for rape after a certain period.

It warned that this limitation "implies a total disregard for human dignity and the free development of the personality of pregnant women, whose pregnancy is not the result of a free and consensual decision, but rather the result of arbitrary and violent conduct that disregards their character as autonomous subjects and that, for this reason, these are behaviors that are criminally typified and are reproachable by the State."

According to the Court, the doctor's refusal to terminate the minor's pregnancy resulted in a series of severe violations of the victim's human rights and her mother's.

"In this way, in order to seek the restitution of the rights of the petitioners, and to the effect of its granting, the First Chamber ordered to recognize the complainants as victims because of the violations to their rights, so that they may be repaired in a timely, full, differentiated, transformative, integral and effective manner for the damage they have suffered, including measures of restitution, rehabilitation, compensation, satisfaction, and non-repetition."

To this effect, it specified, in addition to not relieving the responsible hospital of its obligations, as well as the State Commission for Attention to Victims, the Court bound the Federal Executive Commission for Attention to Victims to request, obtain or coordinate the necessary actions to carry out the reparation to comply with the court sentence.

The Chamber also ordered the state health authority to adequately and exhaustively evaluate the victim's current state of health, inform her mother of the evaluation result, and provide timely and quality treatment to combat the repercussions on her health.

Article 333 of the Federal Penal Code establishes that abortion in Mexico is not punishable when the pregnancy results from rape. Still, several state codes, such as that of Chiapas, set specific time limits for terminating a pregnancy. If the time limit is exceeded, the pregnant woman would be committing a crime.

So far, abortion is only legalized up to the 12th week, with no grounds other than the woman's will, in Mexico City (2007), in Oaxaca (2019) and in Hidalgo (2021), but in the rest of the country each state applies different restrictions. And in the event that the pregnancy is the result of rape, gestation periods are usually imposed to be able to have an abortion.

In fact, in Mexico City on Wednesday, the 20-week gestational limit established to authorize abortion for rape was repealed, so the district is already in line with the Supreme Court's decision.