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The Decriminalization of Abortion: A Landmark Decision by the Mexican Supreme Court

Joy Monserrat Ochoa Martínez, UNAM and the Mexican Supreme Court, and Roberto Niembro Ortega, Universidad Iberoamericana and the Mexican Supreme Court; co-Chair, ICON-S Mexico

Several weeks ago, the Supreme Court issued a landmark judgment recognizing a right to voluntary abortion during the first trimester of pregnancy. The ruling renders several articles of the criminal code of the state of Coahuila criminalizing abortion during the first 12 weeks of pregnancy unconstitutional, and thus revolutionizes abortion law in Mexico.

As of the date of the ruling, only four entities of the Mexican Republic authorize unfettered access to abortions of up to 12 weeks gestation: Mexico City, Oaxaca, Hidalgo, and most recently Veracruz. The local criminal codes of most states recognize narrow grounds for abortion such as when the pregnancy is considered life-threatening for the pregnant person or if the fetus is diagnosed with a severe congenital malformation. At the federal level, the only circumstance in which abortion is legally permitted is in cases of rape. However, several feminist organizations have pointed out that authorities routinely hinder or deliberately block access to free and safe abortions even in cases in which these are allowed by the law. Many women have been imprisoned because of this, according to reports, almost one person per day is prosecuted for abortion in Mexico.

The Supreme Court has a noteworthy track record regarding access to the legal interruption of a pregnancy. To name a few examples, in 2002 the Plenary determined that, even though the right to life is protected by the General Constitution, there are certain cases, such as when the fetus presents serious genetic alterations, in which abortions should not be punishable by law. Also, in 2008 it declared the constitutionality of several dispositions that decriminalized voluntary abortions in the Federal District (now Mexico City) and stated that the right to life can be harmonized with other rights and that the measures adopted by the Federal District’s Legislative Assembly were ideal to safeguard women’s right to freely decide over their own bodies. In 2019 the First Chamber determined that therapeutic abortions are an integral part of women’s right to the highest attainable level of physical and mental health and explained how other rights come into play in this scenario such as the right to equality before the law, the right to non-discrimination, and the right to the free development of one’s own personality. Finally, in 2021 it asserted that establishing a temporal limitation to abortions sought after rape was re-victimizing and stigmatizing for victims. Thus, it’s safe to say that the Mexican Supreme Court has proved to be a strong and consistent ally in the promotion of the full respect of sexual and reproductive rights.

The landmark judgment issued one month ago, in September, was no exception. In the Unconstitutionality Action 148/2017, the Plenary decided unanimously that the laws that criminalize abortion under all circumstances are unconstitutional. It should be noted that this is the first ruling of its kind issued by a constitutional court in Latin America, which not only expands the already existing national standards on sexual and reproductive rights but also constitutes an exemplary precedent in terms of judging with a gender-sensitive approach. Additionally, since this ruling reached the necessary supermajority, it is now constitutionally binding for all state and federal judges in Mexico.

In this judgment, the Plenary struck down several articles of the criminal code of the state of Coahuila that penalized abortions. To reach its decision, the Supreme Court made several remarkable considerations that we will mention briefly. First of all, the Plenary emphasized that in abortion cases, the right to choose over one’s own body does not only apply to women but is also extended to people that have the biological capacity to get pregnant but whose gender identity is not female, i.e., trans men or non-binary individuals. By strategically using this expression, as done so similarly in the case of Law 27.610 in Argentina, the Supreme Court acknowledges the different realities and experiences of people affected by restrictive abortion dispositions and also breaks away from the constraining conceptions of an exclusively binary societal understanding of gender.

On another note, the Plenary highlighted that women and other individuals with gestational capacity facing severe economic marginalization, educational exclusion and inequality as well as social precarity are the ones that are most critically affected by the absolute prohibition of abortion. In this sense, the Supreme Court explained that the criminalization of abortion is particularly violent concerning this demographic group because far from serving as a deterrent, it forces socially vulnerable people to resort to clandestine abortions in unsafe and unsanitary conditions.

Finally, we would like to underline that this judgment constitutes a fundamental step towards the eradication of sexist social prejudices that view women and other individuals with gestational capacity that decide to interrupt their pregnancies as criminals, rather than as human rights holders. In this regard, the Supreme Court accentuated that the negative connotation of abortion has a stigmatizing effect that perpetuates a gender stereotype that oppressively defines the social role of women. Likewise, this decision strengthens the freedom of women and other individuals with gestational capacity to position themselves as the sole bearers of the right to decide over their own bodies and assert their ability to define and carry out their life plans according to their particular choices and expectations.

In this way, a right to legal, safe, and free abortions during the first trimester was firmly recognized by the Mexican Supreme Court. This means that from now on in Mexico, no person shall be tried or sanctioned under criminal codes that fail to recognize the right to interrupt a pregnancy. Shortly after the Supreme Court delivered this ruling, the Mexican Secretariat of Governance issued a press release in which it stated that several government institutions, such as the National Commission to Prevent and Eradicate Violence Against Women (CONAVIM) and the Public Defender’s offices, were working together to identify people that had been prosecuted or sentenced for abortions so that they could provide legal counseling

Suggested citation: Joy Monserrat Ochoa Martínez and Roberto Niembro Ortega, The Decriminalization of Abortion: A Landmark Decision by the Mexican Supreme Court, Int’l J. Const. L. Blog, Oct. 12, 2021, at: http://www.iconnectblog.com/2021/10/the-decriminalization-of-abortion-a-landmark-decision-by-the-mexican-supreme-court/.

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Published on October 12, 2021
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