Abortion in the U.S. and Mexico

By Sophia Lieuw-Kie-Song

As states and the American public adjust to the new reality of a post Roe v Wade[1] era, the impacts have already proven to not just cross state lines, but national borders- Mexican abortion clinics are bracing themselves for the expected influx of Americans seeking the procedure.

Ever since the Latin American country decriminalised abortion in September of 2021, clinics have seen Americans travel for the operation. Luisi Garcia, the director of Profem, one of Mexico’s largest abortion providers, says about 25% of patients in their Tijuana clinic are Americans. Before, those who came from California to get an abortion only did so because it was relatively affordable in Mexico. But ever since Roe v Wade was overturned, they have been seeing more and more patients from Arizona and Texas.[2] These are two of thirteen states where abortion has now been banned, with no exceptions for rape or incest and narrow exemptions for the risk of death of the pregnant person[3].

All these changes have come since the United States Supreme Court re-evaluated its stance on abortion when deciding Dobbs v Jackson Women’s Health Organization[4] earlier this year. The critical question the judges were faced with was whether the Constitution, as it is properly understood, confers a right to obtain an abortion.

Roe v Wade has always been controversial- however it had a significant enough legal basis to stand on that it had not been overturned since its landmark ruling in 1973. This is due to its reaffirmation in Planned Parenthood of Southeastern Pa v Casey[5]. When evaluating Dobbs, the Court critiqued its earlier decision in Casey, saying it reaffirmed Roe using sole stare decisis when a proper application of this requires an assessment of strength on the grounds Roe was based. This is what they planned to accomplish this time around. The Court had to review its standard past cases to determine if the 14th Amendment protects a certain right in its reference to “liberty”. The language of this amendment provides very little guidance, giving the justices a significant amount of discretion. There are two ways to circumvent this issue: by examining whether the right to obtain an abortion is rooted in the country’s history and tradition, and by using the amendment’s Due Process Clause. Relatively less interpretive, the Due Process Clause applies to the rights guaranteed by the first eight amendments and rights that are deemed fundamental but are not mentioned in the Constitution. On June 24 2022, the Supreme Court decided that the right to obtain an abortion was not significantly imbedded in the nation’s history nor was it “implicit in the concept of ordered liberty”.[6]

This has resulted in states being left to their own legislatures in deciding everything about their own abortion laws, as there is no longer a federal consensus or requirement on the matter. [7]

While the U.S. has been restricting abortion, Mexico has been legalising it. In 2021, the Supreme Court of Justice of the Nation rules criminal penalties for terminating pregnancies unconstitutional. Though the ruling only initially applied to the northern state of Coahuila, it will pave the way for decriminalisation across the country. Though it is likely to take time to apply to the entire nation, people with the capacity for pregnancy can undergo the procedure with a judge’s order. Though there are strong anti-abortion views within the Catholic Church and priests consider abortion murder, Mexico has been gradually moving towards legalising abortion for quite some time[8] Despite having Latin America’s second largest Catholic population, the Catholic Church’s influence has been waning in recent years and the government has considered itself secular.[9]

This ruling comes after years of feminist groups fighting for the right to be expanded beyond Oaxaca and Mexico City, the only two states who previously allowed abortions. The Supreme Court had struck down an earlier bid in 2020 to decriminalise abortion saying the decision would “greatly overstep the constitutional powers of this Supreme Court”. One justice in the majority said she voted against it due to a “legal technicality”.

Since the Courts 2008 ruling that upheld Mexico City’s abortion legislation, the rest of the states were given complete control over their own health policies, including abortion laws. This resulted in more than half of them banning abortion in all or most circumstances. [10]

Through protests and reports to the government, people with the capacity for pregnancy were able to bring about change to the Mexican government. Only time will tell if the same can be done in the US. 

[1] Roe v Wade [1973], Supreme Court Ruling 22/1/1973

[2] Gustavo Solis, “Mexican abortion clinics bracing for influx of Americans”,KPBS, 30/6/2022

[3] “Tracking the States where Abortion is now Banned”, New York Times, 8/11/2022

[4] Dobbs v Jackson Women’s Health Organization [2022], Supreme Court Ruling 24/6/2022

[5] Planned Parenthood of Southeastern Pa v Casey [1992], Supreme Court Ruling 29/6/1992

[6] Supreme Court, above n 4

[7] “Tracking the States where Abortion is now Banned”, New York Times, 8/11/2022

[8] David Agren, “Mexican bishops decry ‘murderous’ court decision to legalise abortion”, America Magazine, 8/9/2021

[9] Will Grant, “Mexico decriminalises abortion in landmark ruling”, 7 September 2021

[10] BBC News, “Mexico Supreme Court rejects state’s bid to decriminalise abortion”, 29 July 2020