In September 2021, the Mexican Supreme Court [‘Court’] delivered a chorus of judgements establishing a transformative precedent in the state’s absolute respect for women and other individuals concerning reproductive and abortion rights. The rulings have been regarded as a watershed in the history of women’s rights. In this article, I argue that these judgements are the most robust constitutional structure of protection for the right to legal abortion delivered by a Latin-American Constitutional Court. Further, I conclude that these judgements not only enhance the previously existing national principles on sexual and reproductive rights but also initiate a gender-sensitive approach on the issue and strongly reaffirm the feminist’s marea verde movement.

The Court in its first judgement, unconstitutionality Action 148/2017, unanimously [10/0] ruled that regulations outlawing the absolute criminalisation of abortion were unconstitutional. The verdict came as a conclusion of an unconstitutionality complaint brought in 2017 by the General Prosecutor’s Office, challenging provisions of Coahuila’s Criminal Code [‘Code’] Article 196, along with an instrument that imposed a term of imprisonment for induced abortion. The Court’s task was to determine whether criminalising abortion was a violation of human rights, and consequently a violation of the Political Constitution of the United Mexican States Constitution [‘Constitution’], which guarantees the “right to choose.”

The Court recognised the right to a free and safe abortion throughout the first trimester of pregnancy and  struck down Article 199 of the Code, which prohibited access to abortion treatments to instances of rape, foetal impairment, serious health concerns for the mother, and non-consensual artificial insemination for up to 12 weeks into the pregnancy. Stressing the necessity of considering abortion cases from a “gender perspective,” the Court observed that the judgement would have the retroactive implication and that all individuals arrested under Articles 196 and 199 must be “released immediately.”

Notwithstanding the notion that the judgement primarily decriminalises abortion in Coahuila, these rulings will have a countrywide significance. Previously, only 4 Mexican states out of 32 had decriminalized abortion in the first trimester; Mexico City in 2007 and Oaxaca, Hidalgo, and Veracruz. However, abortion was still prohibited in the rest of the country, with problematic access to exceptions such as for rape or foetal malformation. The Working Group on Discrimination Against Women, CEDAW and CRC recognized that in states where abortion is prohibited by law or otherwise unavailable, women with limited resources are forced to depend on unsafe practitioners and abortion methods; and safe termination of a pregnancy becomes a prerogative of the privileged.

The Court in its rulings recognized woman’s constitutional right to decide whether or not to become a parent, as well as their rights to equality and bodily autonomy. Thereby, recognizing for the first time, the access to abortion as a constitutionally guaranteed right, transforming abortion access in Mexico. The ruling also paves the road for the procedure to be legalised across the Latin America,  strengthening women’s reproductive rights and contributing to the feminist movements, the Marea Verde (Green Wave), and Ipas Mexico which have been demanding the decriminalization of abortion in the country.

After this decision, the Court issued two more abortion-related judgements: first, considering the state of Sinaloa’s Constitution’s “protection of life from conception” and second, considering the conscientious intimation legislation.

The Court overturned Article 4/1 of Sinaloa’s Political Constitution, which specified that the State protects “the right to life from the time an individual is created.”  The Court declared that Mexico’s states do not have the competence to determine the genesis of human life, the definition of “person,” and who is a custodian of human rights because these concerns are only regulated by the General Constitution. Providing a “person” character to a fetus or embryo was an individual virtuous decision that should not be imposed for everyone via the laws. Individuals being coerced to accept such decisions rules against the essence of any democratic and plural society. Therefore, the Court rejected the notion that a person who is still in the womb has the same constitutional position as someone who’s already been conceived, and ruled the right to reproductive autonomy under Article 4 of the Constitution to be inclusive, encompassing the right to free choice, access to birth control, and the possibility to terminate the pregnancy.

In its third judgement, the Court held that the manner conscientious objection was enforced under the General Health Law was inappropriate and might constitute an obstruction in abortion services, proposing that parliament introduce laws to clearly articulate restrictions. Justice Zaldvar observed that such restrictions were “a blank authorization to withhold health services, especially in the scenario of abortion, in contravention of other human rights recognized by the constitution.” The Court also referred to General Recommendation No. 35 of the CEDAW, which stipulates that criminalizing abortion and denying or delaying safe abortion or post-abortion care are aspects of gender-based violence that could ultimately lead to torture or cruelty, inhuman, or degrading treatment. This breakthrough is critical, since the relevant clause has become a substantial roadblock to women’s access to safe abortion procedures, and has been systematically misused by medical practitioners to limit abortion access.

The Marea Verde feminist movement in Latin America has made significant positive changes since 2015, and continues to impose pressure on politicians throughout the region to protect women’s and other individual’s reproductive autonomy and gender equality. All three rulings will further alter the landscape of safe abortion in Mexico. These rulings would also make it convenient for people in Texas to obtain legal abortions, where the recent Texas’s abortion law prohibits physicians from performing abortions if they identify cardiac activity in an embryo, even if it is months before a viable fetus develops, i.e. ‘first detectable heartbeat.’ The ruling also contributes to the eradication of negative social preconceptions and stigmas that surround this essential and contentious issue. Women and other individuals with gestational capability in Mexico can now look forward to a brighter and more liberated future.

Bibliography

Article 196, Coahuila Criminal Code. 1971 [hereinafter ‘Code’]

CEDAW, General Comment No. 34, 4 March 2016.

CEDAW, General Recommendations No. 35 on gender-based violence against women, updating general recommendation No. 19, 14 July 2017.

Constitutions that Protect Life from Conception, The Missing Piece,GIRE, 2018 <https://gire.org.mx/plataforma/constituciones-que-protegen-la-vida-desde-la-concepcion/ > accessed 29 March’ 2022.

Daina Beth Solomon, ‘Hidalgo becomes third Mexican state to allow abortion’ REUTERS July 1, 2021 <https://www.reuters.com/world/americas/hidalgo-becomes-third-mexican-state-allow-abortion-2021-06-30/ > accessed 29 March’ 2022.

Daina Beth Solomon, ‘Mexico’s Veracruz state votes to allow abortion, joining three other regions’ REUTERS  21 July, 2021 <https://www.reuters.com/world/americas/mexicos-veracruz-state-votes-allow-abortion-joining-three-other-regions-2021-07-20/ > accessed 29 March’ 2022.

David Agren, ‘We have made history’: Mexico’s Oaxaca state decriminalises abortion’ The Guardian,  26 September 2019 <https://www.theguardian.com/world/2019/sep/26/we-have-made-history-mexicos-oaxaca-state-decriminalises-abortion> accessed 29 March’ 2022.

Diana Meneses, ‘The ‘Marea Verde’ Demanding Abortion Rights in Mexico’ Girls Globe, 02 Octobe, 2019 <https://www.girlsglobe.org/2019/10/02/the-marea-verde-demanding-abortion-rights-in-mexico/ > accessed 29 March’ 2022.

Elisabeth Jay Friedman, Constanza Tabbush, ‘#NiUnaMenos: Not One Woman Less, Not One More Death!’ The North American Congress on Latin America, November 1, 2016 <https://nacla.org/news/2016/11/01/niunamenos-not-one-woman-less-not-one-more-death> accessed 29 March’ 2022.

Mexico City Legalizes Abortion, Human Rights Watch, May 1, 2007 <https://www.hrw.org/news/2007/05/01/mexico-city-legalizes-abortion > accessed 29 March’ 2022.

Mexico: Landmark Reproductive Rights Rulings, Human Rights Watch, 14 September 2021 <https://www.hrw.org/news/2021/09/14/mexico-landmark-reproductive-rights-rulings > accessed 29 March’ 2022.

Monserrat Ochoa Martínez, Joy; Niembro Ortega, Roberto: “The right to life does not begin at conception”: Mexico’s Supreme Court of Justice and the Fight for Reproductive Freedom, VerfBlog, 13 October, 2021 <https://verfassungsblog.de/the-right-to-life-does-not-begin-at-conception/ >

Nadia Murray-Ragg, ‘Mexico top court declares criminalizing abortion unconstitutional’, JURIST, 8 SEPTEMBER , 2021 <https://www.jurist.org/news/2021/09/mexico-top-court-declares-criminalizing-abortion-unconstitutional/# > accessed 29 March’ 2022.

Phoebe Martin, ‘The ‘Pañuelo Verde’ Across Latin America: a Symbol of Transnational and Local Feminist (Re)volution’, Kings College London, 17 September 2020 <https://www.kcl.ac.uk/the-panuelo-verde-across-latin-america > accessed 29 March’ 2022.

Pia Riggirozzi, Jean Gruge, ‘Argentina’s legalisation of abortion is only the beginning of the battle for reproductive rights in Latin America’ LSE Latin America and Caribbean Blog, 27 January , 2021  <https://blogs.lse.ac.uk/latamcaribbean/2021/01/27/argentinas-legalisation-of-abortion-is-only-the-beginning-of-the-battle-for-reproductive-rights-in-latin-america/ > accessed 29 March’ 2022.

Political Constitution of the United Mexican States, 1917.

Quotation of the Day: Mexican Court Rules Abortion Is Not a Crime, New York Times,

Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, UN  Rights Council, Working Group on Discrimination against Women in Law and in Practice, 2018 <https://digitallibrary.un.org/record/1637427?ln=en> accessed 29 March’ 2022.

Sarthak Gupta, ‘Texas’s Abortion Law: A Nail in the Coffin for Women’s Human and Reproductive Rights’, HumanRightsHere, 26 October 2021 <https://www.humanrightshere.com/post/texas-s-abortion-law-a-nail-in-the-coffin-for-women-s-human-and-reproductive-rights > accessed 29 March’ 2022.

Tara John, Karol Suarez, ‘Thousands march for abortion rights in several Latin American nations’ CNN, 29 September, 2021  <https://edition.cnn.com/2021/09/29/americas/latin-american-abortion-rights-protests-intl/index.html > accessed 29 March’ 2022.

Ximena Casas, ‘How Latin American Women Can Keep Fighting for Abortion Rights and Win’, HumanRights Watch, November 1, 2021 <https://www.hrw.org/news/2021/11/01/how-latin-american-women-can-keep-fighting-abortion-rights-and-win > accessed 29 March’ 2022.