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The judgement is the result of a petition challenging the constitutional validity of the abortion law in Coahuila which penalised abortion with up to 3 years in jail and a fine. Under Article 196 of the Coahuila Penal Code (“CPC”), struck down by the Court, both the person who undergoes abortion and the person who “causes her to have an abortion with her consent” can be prosecuted. Moreover, the Court also invalidated Article 199 of the CPC, which limited access to abortion procedures to cases involving rape, foetal impairment, severe health risks for the mother and non-consensual artificial insemination for up to 12 weeks into the pregnancy. The Court held that the judgement would have retroactive effect and thus, all individuals imprisoned under Articles 196 and 199 must be “released immediately.” Although the ruling specifically decriminalises abortion only in Coahuila, it will have a binding effect across the country.
The Supreme Court stressed the need to analyse abortion cases through a “gender perspective,” placing utmost importance on women’s rights to dignity and bodily autonomy. Although the judgment was unanimous, each justice wrote separately. Justice Norma Piña noted, “[a]ccording to a secular state, the defence and autonomy of privacy of women must be unconditional, according to her life plan, and presume that her decision is rational, deliberate and autonomous.” The Court recognised the Constitutional right of each woman to choose whether to become a parent and upheld their rights to equality and reproductive freedom. Therefore, the ruling recognises access to safe and legal abortion as a constitutionally protected right —effectively revolutionising abortion access in Mexico.
Justice Arturo Zaldívar added, “The criminalisation of abortion punishes the poorest women, the most marginalised, the forgotten and most discriminated against, in the country. It’s a crime that in its nature punishes poverty.” This opinion of the Court is in consonance with research by international human rights organizations like Human Rights Watch, which note that anti-abortion laws affect marginalised women and girls disproportionately, endanger their basic health, and exacerbate inequalities. Studies suggest that marginalised women are often structurally deprived of their reproductive rights and lack the economic resources to access safe abortion. Women from rural areas living in poverty lack even basic healthcare and are forced to engage in unsafe medical procedures to terminate pregnancies. Moreover, they often lack adequate legal representation in cases where they are prosecuted for undergoing abortion procedures. Particularly in Mexico, the Information Group on Reproductive Choice notes that women facing prosecution for abortion are disproportionately poor and many are from vulnerable and/or indigenous communities.
Coahuila joins a total of five Mexican states (including Mexico City, Oaxaca, Hidalgo, and Veracruz) where abortion is legal. However, the large majority of Mexico’s 32 states still criminalise abortion, with slim exceptions for rape, foetal malformation, or grave risk to the mother’s health. Although the current ruling does not automatically decriminalise abortion across states, it sets a binding precedent and an “obligatory criteria for all of the country’s judges,” according to Justice Zaldívar. He affirmed, “From now on, you will not be able to, without violating the court’s criteria and the constitution, charge any woman who aborts under the circumstances this court has ruled as valid.” Abortion rights advocates in the country now plan to use the ruling to challenge anti-abortion laws in other states. Thus, the decision lays a clear pathway to legalize the procedure throughout the country and gradually expand women’s reproductive rights.
The historic judgement was closely followed by two more landmark rulings concerning reproductive rights. In a milestone decision, the Supreme Court separately ruled that protection of “life from conception” in Sinaloa (a northwestern state) was unconstitutional. The case arose from a 2018 petition filed by some members of the Sinaloa Legislature and the National Commission of Human Rights against Article 4 bis A of the Sinaloa Constitution, which established the right to life from conception itself. The Court, while pronouncing the unconstitutionality of said amendment, opined, “It’s not up to any local legislature or this plenary to establish the origin of human life, especially in the absence of scientific consensus.” Further, the Court noted that the sole purpose of such laws was to crack down on abortion, even in cases of rape or grave medical risks to the mother, and that such laws therefore violated the reproductive rights of women. The ruling, although applicable directly only to the state of Sinaloa, will have a ripple effect on all other states with such regressive laws.
In a third landmark ruling, the Supreme Court struck down a provision of the national General Health Law which allowed medical practitioners across the country to refuse procedures, such as abortion, on grounds of conscientious objection. Justice Zaldívar opined that such provisions are “a blank check to deny health services, particularly in the case of abortion, in violation of other human rights that the constitution recognizes.” This development becomes crucial in the current context as the concerned provision often became a major obstacle in women’s access to safe abortion procedures and was routinely abused by medical practitioners to restrict abortion access.
All three of these decisions double down on the Court’s ruling to de-criminalize abortion and strengthen its commitment to the protection of women’s reproductive freedoms. Together, the judgements make the Supreme Court’s intent clear—abortion must be safe, legal and accessible for all Mexican women.
Modern international human rights jurisprudence has consistently recognized that access to safe and legal abortion is a basic human right that should be guaranteed to all women and girls. Numerous treaty bodies have expressly stated that restrictions on abortion violate women’s rights to health, dignity, autonomy, and in some cases, the right to be free from cruel, inhumane, and degrading treatment. Treaty bodies such as the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of the Child, the Committee on Economic, Social and Cultural Rights and the Committee against Torture have repeatedly called for the decriminalisation of abortion and urged nations to ensure access to safe procedures.
Moreover, the United Nations Human Rights Committee (“UNHRC”) held, in the milestone case of Mellet v. Ireland (2016), that Ireland’s near-comprehensive ban on abortion blatantly violated Articles 7 and 17 of the International Covenant on Civil and Political Rights (“ICCPR”), which provide for the right to be free from cruel, inhumane, and degrading treatment and the right to privacy, respectively. Likewise, in KL v. Peru (2005), the UNHRC established the denial of access to abortion as a violation of ICCPR Articles 7, 17, and 24. Thus, increasingly progressive jurisprudence in human rights law recognises access to abortion as an inviolable right and imposes obligations on countries to protect the bodily autonomy and reproductive freedom of women.
The arguments in all of these recommendations and judgements center around a single idea—women’s rights must be the primary consideration when deciding on abortion regulations. This means that reproductive and sexual freedom must not be compromised for religious, cultural, or societal considerations. In the present judgment decriminalizing abortion in Coahuila, the Court has made direct references to international human rights laws and judgements whilst relying on a similar reasoning – a significant step for women’s human rights in the country.
In the past few years, the Marea Verde (Green Wave) feminist movement across Latin America, has made great strides in a region notorious for draconian bans on abortion. The wave began in 2015 with the #NiUnaMenos (Not One Woman Less, Not One More Death) movement in Argentina – a powerful campaign against the appalling rates of femicide in the country. Since then, the movement has become a strong advocate against gender-based violence and also has contributed tremendously in erasing the stigma associated with abortion and in spreading awareness on women’s rights at the grassroots level. The Green Wave has had several groundbreaking victories and continues to put pressure on policymakers in the region to protect the human rights of women and girls, particularly their rights to reproductive autonomy and gender equality.
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