Comunicados de Prensa

MEXICAN SUPREME COURT: LANDMARK DECISIONS AT THE VANGUARD FOR REPRODUCTIVE RIGHTS WORLDWIDE

In a string of recent decisions, the Mexican Supreme Court has established the strongest protections for the right to terminate a pregnancy handed down by any constitutional court in Latin America to date. With these three decisions, all issued in September, the Court has positioned itself at the vanguard in guaranteeing reproductive rights worldwide.

In its first decision (AI 148/2017), the Mexican high court unanimously recognized a constitutional right to legal, safe, and free abortion services at the initial stages of pregnancy, as well as in other situations outlined by the Court. Therefore, laws that criminalize abortion in all circumstances are unconstitutional. While the Court recognized that there is a state interest in the protection of fetal development that increases over the course of a pregnancy, it emphasized that such interest may not trump the reproductive rights of women and other individuals with gestational capacity, such as trans persons and non-binary individuals.

As a direct result of this decision, several portions of the criminal code of the State of Coahuila were struck down and women who had been imprisoned in that state for having procured abortions were freed. Having reached a supermajority, the ruling is binding precedent for all state and federal judges in Mexico. Thus, no person may be tried or sanctioned in Mexico under criminal codes that do not recognize the right to terminate a pregnancy.

No other constitutional court in Latin America has recognized such expansive rights, as rulings by other courts in the region have recognized the right to terminate a pregnancy only in limited situations, such as when the life and health of a woman is at risk. The decision goes further, even, than the emblematic Roe v. Wade decision handed down by the U.S. Supreme Court, because it recognizes that economic barriers to reproductive services must be addressed in order to guarantee the right to health.

In a second decision (AI 106/2018 and 107/2018), the Supreme Court ruled that states do not have the authority, under the Mexican federal system, to establish a right to life from the moment of conception in their local constitutions. That is, only the General Constitution may establish what constitutes a “person” entitled to fundamental rights. Furthermore, the Court held that states may not grant embryos or fetuses the same legal protections accorded to persons, recognizing that such measures are aimed at limiting reproductive rights, particularly abortion rights.

In a third decision (AI 54/2018), the Mexican Supreme Court struck down part of the General Law regulating health services nationwide, because it established an expansive right to conscientious objection by medical personnel, without establishing the limits necessary to ensure patients’ rights to healthcare. Thus, the high court issued an exhortation to the legislative branch of government, so that the exercise of conscientious objection in the medical system may be properly regulated. Though this decision broadly protects patients’ rights, it is especially important for the purpose of ensuring access to abortion, given that conscientious objection has been used worldwide to deny reproductive healthcare to women and other individuals with gestational capacity.

In addition to these decisions, the Mexican Supreme Court reaffirmed its commitment to eradicating gender-based violence and discrimination in its own ranks, through two administrative measures announced on the 8th of September by Chief Justice Arturo Zaldívar. First, the Court created an internal mechanism to address sexual harassment and violence in the workplace, which will include a unit for the provision of legal, medical, and psychological attention to victims. And second, it extended the tribunal´s three-month parental leave policy to all workers, regardless of gender. Through this policy, the Mexican Supreme Court seeks to break gender-based stereotypes that assign the task of childrearing to women, resulting in workplace discrimination, greater burdens of unpaid domestic work, and other barriers to their economic and professional development. It also seeks to recognize the responsibility and right of fathers to fully exercise their paternity, and to foster the development of children who will benefit from co-parenting. With these rulings and measures, the Supreme Court of Mexico has demonstrated its unequivocal commitment to gender justice and women´s rights.