Mexico High Court Declares Right to Abortion for Women and “Gestating Persons”

By | September 9, 2021

NEW YORK, September 10 (C-Fam) Mexico’s Supreme Court unanimously struck down the criminal abortion laws of the State of Coahuila de Zaragoza based on what it termed “women’s and gestating persons’ right to choose.”

Women have “an absolute right to choose freely, without stigmatization and without obstacles,” said Arturo Zaldívar, President of Mexico’s Supreme Court during a public debate on the ruling earlier this week. He called the decision “historic.”

The effect of the decision could be that abortion may never be considered a criminal act when it is carried out with the woman’s consent, effectively granting a right to abortion-on-demand up to the point of birth.

The ruling, announced by the court on Tuesday, has yet to be published officially, but a draft of the ruling available on the website of the court reveals it’s potentially sweeping scope.

The uncertainty about the decision has to do with how late into a pregnancy a woman may exercise her right to abortion-on-demand. The ruling could establish a right in the first fourteen weeks of pregnancy or leave this up to individual states.

The right to choose an abortion would extend not just to women, but all “gestating persons,” a term used to refer to a woman who thinks she is a man. All ten of the justices were careful to refer both to women and “gestating persons” throughout the debate on Monday and Tuesday.

The draft court opinion relies extensively on the non-binding opinions and recommendations of UN human rights experts. It also cites the decisions of foreign courts, including the U.S. Supreme Court’s 1973 Roe v. Wade decision which declared abortion a constitutional right in the United States, and was the first judicial ruling of its kind in the world.

There was little disagreement on the outcome of the case among the Supreme Court Justices in their public debate this week. The current justices of the court referred to abortion repeatedly as a human right following the recommendations of the UN system. This reflects a marked political shift to the left in the Mexican Court over the last ten years. In 2009 the Mexican High Court declined to follow the opinions of UN human rights bodies and experts urging Mexico to liberalize abortion. The Court dismissed them as non-binding. The rather quick change demonstrates the intense pressure on Mexico by UN bodies.

The only debate among the justices was about how sweeping the court’s decision should be. Some justices wondered out loud if keeping abortion as a crime, and only allow exceptions in some cases was an option. Zaldívar pushed back aggressively against these suggestions. “The same behavior cannot be at the same time both a human right and a crime,” Zaldívar said repeatedly. In the end his argument prevailed at least nine justices agreed with him.A press release from the Mexican Supreme Court emphasized that the ruling of the court and its reasoned opinion would be binding on all Mexican judges, both federal and local.

“From now in deciding all future cases they (the judges) will have to keep in mind that all State laws that criminalize abortion in a complete way are unconstitutional, including those that do not allow abortion in the earlier stages of pregnancy,” the press statement reads. This includes a majority of abortion laws of Mexican states, which currently outlaw abortion in all circumstances, but have penal provisions requiring non-enforcement in cases involving rape, incest, or where the life of the mother is in danger if she were to carry a pregnancy to term.

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