Mexico: The Supreme Court Invents a Right to Abortion

September 12, 2023
Mexico’s Supreme Court building

The Supreme Court of Mexico has declared the criminalization of abortion unconstitutional. Judges of Mexico's highest court have arrogated to themselves the power to impose changes to pro-life laws passed across the country. The magistrates do not respect the separation of powers and have invented a right that does not exist in the constitution of the country.

“The legal system that governs the offense of abortion in the federal penal code is unconstitutional because it is contrary to the right to decide by women and people with the capacity to conceive.”

It is through the detour of a “right to decide” – to decide what, by the way? – that the justices of the Supreme Court have established a kind of “right to abortion.”

The judgment was drafted by magistrate Ana Margarita Ríos Farjat and approved with her vote and that of the four other members of the First Chamber: Jorge Mario Pardo Rebolledo, Arturo Zaldívar Lelo de Larrea, Juan Luis González Alcantárá Carranca, and Alfredo Gutiérrez Ortiz Mena.

The judgment follows an injunction filed by a civil association, not identified in the text, against Articles 330, 331 and 332 of the Federal Criminal Code, which provide for penalties for women who have abortions, for health professionals who perform the procedure, and for those who pressure women to abort.

The GIRE association (Grupo de Información en Reproducción Elegida) welcomed the decision. GIRE had requested that Articles 330, 331, 332, 333 and 334 of the criminal code, which provide for prison sentences for pregnant women who have abortions, as well as for medical personnel who perform abortions, be declared unconstitutional.

The decision stipulates that the aforementioned articles will no longer have effect while the decision will be applied retroactively for the benefit of those prosecuted or convicted for this offense.

The ruling comes after the court declared the 2021 criminalization of abortion in the state of Coahuila unconstitutional, while a second ruling struck down a section of the Sinaloa state constitution that protected life from the time of conception.

Although the judgment has created a precedent allowing the decision to be reproduced in other Mexican states, it is for them to modify their legislation. A few months later, the wave of decriminalization reached Veracruz, Hidalgo, Mexico City, Baja California, and Oaxaca.

The unanimous decision of the Court's eleven judges means that public health institutions, such as the Mexican Institute of Social Security (IMSS) or the Institute of Security and Social Services for State Workers (ISSSTE), must perform free abortions for any woman wishing to kill her unborn child.

But in any case, it is up to the Federal Congress of the country to change the law. Mexico is not the only country where high courts have chosen to bypass elected parliaments. It was the same in Colombia.