Abortion is a matter for each state. It is decriminalized in only four of the country's states. The Supreme Court's ruling only invalidates the penal code of the state in question, Coahuila, but sets a binding precedent for all courts in the country.
It should be remembered that Mexico is a federal republic made up of 32 states. Each state is the master of its own health policy. In fact, abortion is only decriminalized in four states: Mexico City, Oaxaca, Hidalgo, and Veracruz.
The country has a Supreme Court of Nation Justice (SCJN). This, in a decision dated Tuesday, September 7, 2021, declared as “unconstitutional” the criminalization of women who abort at the first stage of pregnancy, and it recognized what it calls the “right to decide” in a judgment that can, unfortunately, be qualified as historical.
Meeting in plenary session, the judges of the SCJN unanimously invalidated article 196 of the penal code of the state of Coahuila (north of the country) which imposed one to three years in prison “on the woman who voluntarily practices abortion or to the person having the abortion with their consent.”
Following a 2017 challenge by the former attorney general against Coahuila's penal code, the SCJN declared as unconstitutional the criminalization of women who abort and that of health workers who assist them with their consent.
The reason given is as follows: “The capacity of criminal law to punish people who voluntarily terminate [sic] their pregnancy is not here a power at the disposal of the legislator, because human rights are at stake,” Judge Margarita Ríos-Farjat said on Tuesday.
This ruling is “historic” because it is the first time that the Mexican Supreme Court “has placed the right to decide” at the center of the discussion, according to Judge Aguilar.
The Supreme Court’s ruling only invalidates the Coahuila state penal code but sets a binding precedent for all courts in the country.
Organizations and women who advocate for the termination of the life of unborn children can use this precedent to fight the criminalization of abortion in other states.
In addition, a bill is currently in preparation that provides for “the guarantee that women or pregnant women who so choose can terminate their pregnancy in public health establishments in an accessible, free, confidential, safe manner, fast and non-discriminatory.”
Despite support for the bill and the concept of the “right to decide,” judges disagree on whether the decision should set a limit.
Some judges have argued that the “right to decide” is not “unlimited,” while the President of the Supreme Court, Arturo Zaldívar, lamented that the bill “fails” to invalidate all the articles that criminalize abortion. “For a decade, I have argued before this Supreme Court that there is a fundamental right to terminate a pregnancy,” Zaldívar said.
Abortion, therefore, continues to progress in Latin and Central America: after Argentina at the end of 2020, and Ecuador - partially - last April, Mexico is in the process of changing too. Always under the same pretext: the right of women to self-determination, forgetting that there is a right to life which is thus systematically violated.
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