Conscientious Objection and Abortion
Prepared in: October 2024
Although conscientious objection is not considered a human right, it is grounded in the right to freedom of conscience and religion recognized in Article 24 of the Political Constitution of the United Mexican States, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. This right establishes that every person may freely choose their beliefs in accordance with their ideas and convictions. In this way, it is recognized that moral or religious convictions may lead individuals to refuse, in exceptional circumstances, to comply with a duty recognized by law.
In the health care context, this refers to the individual position of medical or nursing personnel regarding the performance of a health care procedure in which they are directly involved.
The World Health Organization (WHO), in its Abortion Care Guideline, has recommended that states regulate conscientious objection in order to protect comprehensive access to abortion services. Given that states must ensure the provision of best international clinical practices and protect people who seek abortion services, they are obligated to guarantee that refusals by health care personnel do not undermine or obstruct access to safe and high-quality abortion.
In Mexico, Article 10 bis of the General Health Law (LGS, for its Spanish initials) established the right of medical and nursing personnel belonging to the national health system to exercise conscientious objection. Based on this article, personnel could refuse to provide services that were contrary to their convictions and legal obligations, except in cases of medical emergency or when the life of the user was at risk. However, on September 21, 2021, the Supreme Court of Justice of the Nation (SCJN or Supreme Court) invalidated this article when it ruled on Action of Unconstitutionality 54/2018 (AU 54/2018), which had been brought by the National Human Rights Commission.
In its ruling, the SCJN determined that Article 10 bis did not establish clear limits on conscientious objection. Among other considerations, the Court stated that public and private health institutions must, at all times, have willing, trained, and available personnel—that is, non-objecting personnel—to perform the procedures requested by service users, and not refer them to another medical unit for care. Moreover, it specified that conscientious objection must not, under any circumstances, restrict or violate the human rights of others; therefore, health institutions cannot invoke it to evade their obligations. To learn more about the SCJN’s rulings on the regulation of conscientious objection, see GIRE’s publication Step by Step: Mexico’s Supreme Court Rulings on Abortion.
Overall, the ruling in AU 54/2018 indicates that conscientious objection is not an absolute right and therefore cannot be invoked in all cases or in all forms. For its regulation and exercise to be constitutionally valid, conscientious objection must be subject to certain limits, including that it be individual in nature, that it constitute a genuine conflict of conscience in a constitutional and democratic context, and that it respect the human rights of others. However, to date (July 2023, almost two years after the ruling was issued), the federal legislature has not amended the LGS to incorporate the clarifications made by the SCJN regarding conscientious objection.
Since 2016, the amendment to Official Standard NOM-046-SSA2-2005: Family, Sexual, and Gender-Based Violence: Criteria for Prevention and Care (NOM 046) has already established the obligation of public health care institutions to have willing, trained, and available personnel to provide health services, including abortion, to victims of sexual violence. However, this standard also establishes that if at the time a request for care is made it is not possible to provide abortion services in a timely and adequate manner, the user must be referred to another institution that has both willing, trained, and available health personnel and the necessary infrastructure to provide quality care.
What Can I Find on This Microsite?
This microsite summarizes the analysis conducted by GIRE based on information obtained through nearly 500 access-to-information requests (SAI, for this term’s Spanish initials), aimed at assessing whether Mexico has complied with the regulatory framework on conscientious objection and how both the reform to NOM 046 and the ruling in AU 54/2018 have been implemented in practice. The objective of the research was to determine whether conscientious objection has functioned as a barrier preventing women and other people with the capacity to gestate from accessing safe, free, and high-quality abortion services.
SAIs were addressed to health institutions in the 32 federal entities, as well as to institutions responsible for providing health services at the federal level (IMSS, ISSSTE, PEMEX, SEDENA, SEMAR, and the Secretariat of Health).
In this analysis, voluntary termination of pregnancy (VTP) refers to access to pregnancy termination services in cases where the pregnancy resulted from sexual violence, as established by regulations governing care for victims. Legal termination of pregnancy (LTP), on the other hand, refers to access to abortion services provided upon the request of the woman or pregnant person. Finally, induced medical abortion is understood as the intentional termination of an intrauterine pregnancy through a medical or surgical procedure; this category therefore includes VTP and LTP services, as well as abortions provided under specific legal grounds.
The information collected covers the period from January 1, 2016, to October 2022 (a timeframe that includes the year in which NOM 046 was reformed and extends one year after the ruling in AU 54/2018) and is organized into six subject areas:
| Incomplete response | The obligated entity omitted part of the requested information and did not specify whether it maintains records of this information. |
| No information | The obligated entity does not provide the requested information but clarifies that it does maintain records of it, or responded “no information,” or stated that it had no documentary record of what was requested. |
| No records | The obligated entity does not maintain records of the requested information. |
| Incorrect response | The obligated entity provided information that does not correspond to what was requested. |
| 0 | The obligated entity responded “zero” or “none.” |
GIRE also developed a transparency indicator to assess and compare the information provided by the federal entities and the federal government regarding the documentation and monitoring they carry out on conscientious objection, specifically in relation to issues concerning induced abortion.