Plenary session of Mexico’s Supreme Court (CC: SCJN)
Jalisco.— In rulings against two Mexican states’ laws, the country’s Supreme Court has defined abortion as a woman’s right. The rulings do not change the federal norms nor those of the other states, but they establish mandatory criteria for all judges across the country in cases related to abortion that arise from now on.
It was a controversial week for Mexico’s Supreme Court. In both of its rulings, the court opted for an abortionist interpretation of the Constitution and the international treaties in force. However, the most controversial thing is not the rulings themselves, but rather the supporting arguments used to reach them.
Practical implications of the rulings
It is important to clarify that this does not imply an automatic legalization of abortion throughout the country. However, it sets a precedent for any future abortion-related lawsuit to be resolved according to the new rulings. In other words, while the court’s decision still does not force doctors, hospitals or nurses to perform abortions, when a person wants to get an abortion and goes to court, the recent rulings will dictate the outcome of the verdict. The only ones bound by the Supreme Court’s recent rulings, in addition to the states of Coahuila and Sinaloa, are all of Mexico’s judges.
In its first ruling, which came into effect September 7, the Supreme Court declared the penal laws of Coahuila which criminalize abortion after 12 weeks unconstitutional, as well as its criminalization of medical assistance in cases of elective abortion.
The most controversial part of the unanimous ruling was the line of argument offered by the ten justices (one justice was absent from the discussion). Contrary to what one might imagine, in was not based in principles related to criminal law, such as disproportionality of the criminal sentencing for certain actions, concerns about social reintegration of convicted persons, or related issues. Far from it. Rather, the nation’s top court based its arguments on the assumption that it is a human right to have an abortion, provided for in the Constitution and international treaties, and derived from women’s reproductive autonomy. From this premise, the Court interpreted any prohibition of or restriction on abortion as a violation of a human right.
This is controversial because there is no pronouncement on abortion in the Constitution or in the treaties in force However, there are treaties which specifically protect the right to life from conception, such as Article 4 of the American Convention on Human Rights (1).
The Court, in a show of judicial activism, withdrew its decision-making process from public deliberation
Taking the issue even further, on September 9, the Court declared the Constitution of the state of Sinaloa unconstitutional, which protected life from conception in terms similar to those established in Article 4 of the American Convention on Human Rights. In its ruling, the Court found that the protection of the life of the unborn violates the reproductive autonomy of women, and that while even the unborn have certain value and enjoy certain constitutional protections that gradually increase over time, they are not afforded the same status as “persons”. According to the Court, the protection of the unborn cannot hinder at any time the “right” women have to terminate their pregnancies.
To support its argument, the Court took as its basis the so-called rights to reproductive autonomy and free development of personality. Both rights derive from an interpretation of the term “human dignity” that claims to be founded in Kantian thought, but does so in a decontextualized and frankly ignorant way. In its development of these concepts in its jurisprudence, the Court maintains that human dignity implies that each individual can make decisions autonomously according to their arbitrary wishes, without any outside interference, the only limitation being that, if those decisions collide with those of other individuals, a weighting exercise must be carried out to determine which interest will be free to prevail. In the two rulings in question, the Court simply excludes the unborn from such protection, without offering further arguments for doing so.
However, as incredible as it may seem, this philosophically inconsistent and empirically absurd understanding has been reinforced time and time again in cases where the Court wishes to rule on issues that are not textually provided for in the Constitution or in the treaties in force. The Court has used this interpretation to dogmatically decide that there is a human right to the recreational use of marijuana, to be able to change one’s birth certificate according to one’s wishes regardless of birth sex, to same-sex marriage and, most recently, to abortion.
The reactions were not long in coming. Online and in the media, the decision has sparked a polarization of opinions for or against the rulings. This was extremely foreseeable, since there was no formal public deliberation nor talk of compromise to reach an agreement. Rather, the justices of the nation’s top court decided to put an end to a sensitive and highly debatable issue behind closed doors. This lack of public debate on the topic implies a judicial activism that can thwart the legitimacy of the institutions behind the administration of justice, as they can easily be perceived as partial institutions that decide according to the ideological affiliation of their members. Issues are being decided dogmatically, without clear legal foundations, and without allowing for nuances or further deliberation.
Regardless of the extremely weak line of argument behind these decisions in legal terms, their approach fails to contemplate the very plight of abortion itself. Posing abortion as the exercise of a human right implies that the decision to abort is desirable, thus making the lack of resources and unfair conditions experienced by women who find themselves in this situation irrelevant, invisible. In their treatment of abortion, it is not seen as a tragedy to be avoided that begs different social responsibilities be placed at the center of the debate, but as an exercise of freedom worthy of praise. It isn’t approached as a symptom of social breakdown caused by situations of injustice, but as evidence of «progress», «empowerment» and increased «autonomy».
Juan Pablo Andrade Rojas
J.D. and Professor of Law
Translated from Spanish by Lucia K. Maher
(1) “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.”