Was abortion decriminalized in Mexico? What you need to know about the recent ruling

ACI Prensa Staff, Sep 13, 2023 / 16:00 pm

On Sept. 6, Mexico’s First Chamber of the Supreme Court of Justice of the Nation (SCJN) declared “the legal system that criminalizes abortion in the Federal Penal Code to be unconstitutional.” 

Here is what you need to know about the implications of the decision and the possible consequences for the future of abortion in Mexico.

No, abortion has not been decriminalized throughout Mexico

Asked if the SCJN has decriminalized abortion with its recent ruling, Francisco Vázquez-Gómez Bisogno — who holds a doctorate in law, a master’s degree in constitutional procedural law, and a master’s degree in legal sciences — told ACI Prensa, CNA’s Spanish-language news partner, that “the answer is no, very clearly.”

The jurist also specializes in amparo proceedings, which are legal challenges to protect the constitutional rights of individuals who are allegedly being violated by a governmental entity.

The professor pointed out that what the Supreme Court ruled on was an amparo filed by the feminist organization Information Group on Reproductive Choice (GIRE) against articles 330–334 of the Federal Penal Code regarding the crime of abortion.

GIRE is essentially an abortion advocacy group, not a health care provider or a counseling service.

Vázquez-Gómez said that when deciding the issue, “the articles that classify abortion in the Federal Penal Code were analyzed in those parts relating to third parties who come to provide support to women who decide to undergo that procedure.”

“Therefore, when granting amparo to a civil association, the granting of constitutional protection must be understood in light of the legitimate interest recognized by the plaintiff [who files the amparo proceedings],” he maintained.

Which means, according to the lawyer, “that the nonenforcement of the penal code should only benefit ‘women and people with the capacity to gestate’ in those cases in which they [engage the services of] the plaintiff civil association,” that is, only by GIRE.

Consequently, he said: “The day after tomorrow, any woman who [engages the services of] this civil association, in principle, will have to get an abortion from health institutions.”

But this does not imply that any association dedicated to abortion is exempt from the Federal Penal Code, but rather, according to Vázquez-Gómez, “the amparo has very specific effects,” since only “women who are served by this civil association can get an abortion. But anyone else would have to file its own amparo.”

The practice of abortion will be limited

Along the same lines, Diana Gamboa Aguirre, who holds a master’s degree in constitutional law, told ACI Prensa that the First Chamber of the SCJN has ruled that “any public health institution is obliged to perform an abortion if it is GIRE that requests it.”

“The court lacks the faculty to establish public policies, and our constitutional order and international conventions [ratified by Mexico] recognize the right to conscientious objection, so health personnel cannot be forced to end the life of any unborn child against their will and conscience,” Gamboa noted.

GIRE and a ‘strategic litigation’

The Mexican jurist points out that in this case “it’s important to be clear that we are dealing with strategic litigation,” a type of legal action taken seeking to bring about broad social or political change, which can even lead to changes in the law that affect an entire country.

“To that extent, initially the amparo will have effects [only] on the plaintiff civil association which, by the way, has been one of the main beneficiaries of the abortion industry in our country,” she noted.

“Within the $18.8 million that the International Planned Parenthood Federation injected into Mexico at least from 2008 to 2016, GIRE was one of the main beneficiaries, along with other NGOs [nongovernmental organizations] that promote the vision of abortion as a supposed right to the benefit of the abortion industry,” she pointed out.

Effects on Mexican legislation not yet known

A question that has arisen as a result of the Supreme Court’s ruling is whether the amparo filed by the civil association will have an effect on the Federal Penal Code and consequently on state legislatures, which would set the precedent for decriminalizing abortion on the national level.

The confusion has arisen because the Supreme Court of Justice issued a statement instructing the Federal Congress to “repeal the regulations contained in the Federal Penal Code that criminalize voluntary abortion (self-induced or consent given to the practitioner) before the ordinary legislative sessions end during which the ruling on this matter was notified.”

According to Vázquez-Gómez Bisogno, “the draft ruling says absolutely nothing” about the reform of the Federal Penal Code and the intervention of the Congress of the Union, “so we will have to wait for the final version of the ruling to be published to know the effects.” This could even take months.

In turn, Gamboa pointed out that “there is no clarity” with the court decision and described it as “an arbitrary imposition of the court, which technically lacks support in that law that enables it to act in that sense.”

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“Although they could initiate proceedings to not implement the ruling, Congress has means to defend itself in the absence of any constitutional or legal faculties that would enable the court to order it to repeal a law due to an amparo,” she maintained.

Is there a ‘right’ to abortion?

The draft ruling that was approved by the Supreme Court states that the absolute prohibition of abortion violates “the right to free development of personality, the right to health, equality, and nondiscrimination, and reproductive autonomy.”

However, both lawyers consulted by ACI Prensa agree that the Supreme Court would be establishing the “right to abortion” overriding the Political Constitution of Mexico.

Gamboa pointed out that the judges of the SCJN established “an alleged ‘right’ of women to terminate our unborn children. Under this alleged right, it is stated that the censure in the criminal code for said conduct is supposedly unconstitutional. However, the judicial construction described is at odds with the specific protection that, both at the constitutional level and in international treaties, the conceived child developing in the womb has in the Mexican legal order.”

Vázquez-Gómez warns that although in “its paraphrasing the Supreme Court does note that there would be a right to abortion,” in the Constitution of Mexico “there is no right to abortion, it’s not in the text.”

“What is in the text, in Article 29 of the Constitution, for example, is that if [the government] wanted to suspend rights in any context of invasion, of serious disturbance of public order, one right, the first of the rights that cannot be suspended not even in those circumstances is it the right to life,” the jurist pointed out.

This story was first published by ACI Prensa, CNA’s Spanish-language news partner. It has been translated and adapted by CNA.