The Limits of Conscientious Objection and the Right to Abortion in Mexico

Joy Monserrat Ochoa Martínez & Roberto Niembro Ortega

Universidad Nacional Autónoma de México & Universidad Iberoamericana

Last month, the Mexican Supreme Court of Justice issued three landmark rulings that constitute an important milestone for sexual and reproductive rights in Mexico. These three rulings provided the most comprehensive constitutional framework of protection for the right to legal abortion services handed down by a Latin-American constitutional court to this day.

The first matter that the Mexican Supreme Court ruled on was the decriminalization of voluntary abortion during the first 12 weeks of pregnancy. Sitting en banc, the Mexican Supreme Court unanimously declared that laws that penalize abortions in absolute terms are unconstitutional. In its second ruling, the Court concluded that state legislatures are not authorized to establish a right to life “from the moment of conception” in local constitutions, because this matter exclusively falls under the scope of the General Constitution. Last but not least, in the Unconstitutionality Action 54/2018 the Supreme Court struck down a number of articles of the General Health Law, Article 10 bis in particular, that regulated the right to conscientious objection by medical and nursing personnel. These dispositions established that health workers were allowed to exercise conscientious objection to refrain from participating in certain medical procedures that could contradict their religious or personal beliefs. It should also be noted that the only exceptions legally contemplated for the exercise of conscientious objection were cases of a medical emergency or if a patient’s life was at risk. However, the Court considered that this regulation failed to outline conscientious objection’s necessary limits to properly ensure patients’ access to healthcare.

In this post, we will describe how conscientious objection can hinder access to abortion services, then we will exemplify how the Court has analyzed conscientious objection in the medical field. To conclude, we will describe some of the key aspects of the Court’s latest decision regarding this topic.

Background

Several feminist organizations, such as Ipas Mexico, have pointed out that in Mexico, especially when it comes to the use of contraceptive methods, fertility treatments or abortions, the right to conscientious objection has been used by health workers to justify the denial or delay of sexual and reproductive health services to women and girls. In this way, the systematic and indiscriminate exercise of conscientious objection translates into a discriminatory practice that particularly affects women and other individuals with gestational capabilities that are marginalized or living in poverty.

At the same time, freedom of religion, conscience, and ethical convictions is recognized as a human right by the Mexican Constitution and also by several international treaties signed and ratified by Mexico. Moreover, conscientious objection has been defined by the Second Chamber (i.e. a 5-member panel) of the Mexican Supreme Court as “a manifestation of the right to freedom of thought, conscience, and religion”. In the medical field, conscientious objection happens when a health worker refuses to participate in a medical procedure or provide certain services because doing so could result in a serious injury to his or her conscience or personal beliefs. Additionally, on several occasions, the Supreme Court has upheld that this right is not absolute. For example, in 2018 the First Chamber (i.e. a 5-member panel) of the Mexican Supreme Court determined that if a child’s parents invoked their right to conscientious objection to refuse medical treatment needed by their child, the State must supersede the parents’ decision and authorize the procedures indicated by physicians to save the child’s life or improve their health. 

The Court’s Latest Decision on Conscientious Objection

First of all, it should be noted that the Court unequivocally conceded that health workers who are members of the National Healthcare System have the right to freedom of religion and conscience, from which conscientious objection stems, and thus they can abstain from participating in medical procedures that go against their religious or ideological beliefs. However, the Court considered that the way in which conscientious objection was formulated in the aforementioned dispositions was too broad and generic and thus carried a problem of legal uncertainty that put patients’ rights at risk. Particularly, because these dispositions failed to clearly explain how health institutions should safeguard patients’ access to health services in the cases in which the attending physician or nurse happened to be a conscientious objector.

Even though the draft opinion submitted for the consideration of the Court initially intended to uphold the constitutionality of the contested provisions, during the analysis and discussion of the case a majority of the Justices decided that the best solution was to strike down said articles and call upon Congress to regulate the right to conscientious objection explicitly identifying its limits. In that regard, some Justices mentioned certain aspects that must be considered in the regulation of conscientious objection, i.e., that it should not be invoked when refusing health services entails a disproportionate burden for women or individuals with gestational capabilities that decide to interrupt their pregnancies. 

With that said, there were certain aspects of the concrete case that all the Justices agreed upon, namely: (i) that conscientious objection cannot be invoked by health workers to deny or delay access to medical care based on discriminatory grounds, (ii) that conscientious objection is a strictly individual right, which means that health institutions cannot invoke it to deny medical care or force their personnel to invoke it, and (iii) every person is entitled to the right to health and the State must use every means at its disposal to ensure its protection. Nevertheless, we should bear in mind that the official version of the judgment is still in the works, so these considerations may vary or not even be included in the final draft.

Conclusion

In our view, this precedent is a fundamental step towards the materialization of the right to abortion in Mexico, which also strengthens the already existing standards regarding other sexual and reproductive rights. An important aspect of the latest Court’s decision on conscientious objection, is that the Court acknowledged that the decriminalization of abortion was not enough to adequately ensure that women and individuals with gestational capabilities have effective access to free and safe abortions. Accordingly, this judgment paves the way for a more socially sensible regulation that aims to make sure that health services, including abortion, are available and attainable for every person. Finally, we think that by leaving behind the conception of abortion as a legally punishable act, its negative connotation in social perception can begin to dissipate—which, in turn, will help build a freer and more tolerant future for everyone.

Joy Monserrat Ochoa Martínez is a Law graduate from the Universidad Nacional Autónoma de México and Deputy Director of Systematization of Information at the Directorate-General for Institutional Relations at the Mexican Supreme Court of Justice

Roberto Niembro Ortega is a Professor of Constitutional Law at the Universidad Iberoamericana, co-chair of the Mexican Chapter of ICON-S and General Director of Institutional Relations at the Mexican Supreme Court of Justice

Suggested Citation: Joy Monserrat Ochoa Martínez & Roberto Niembro Ortega, ‘The Limits of Conscientious Objection and the Right to Abortion in Mexico’ IACL-AIDC Blog (21 October 2021) https://blog-iacl-aidc.org/2021-posts/2021/10/21/hjfwxmzw3z94aw6rwd8l7l7748wv54.