Date: Mon, 12 Mar 2007 15:28:43 -0400
From: "REPROHEALTHLAW-L : Reproductive and Sexual Health Law
Subject: [RHLAW] Mexican Supreme Court & Abortion

Many thanks to our distinguished visitor, Eduardo Barraza, a Professor ofSociology of the Universidad Nacional Autonoma de Mexico, who chose tospend his sabbatical this year at the Faculty of Law, University ofToronto. He has kindly contributed the following analysis to thelistserve, a detailed version of which is also available in English. Ifyou would like to see the longer version, please contact him directly

THE MEXICAN SUPREME COURT AND ABORTION

Eduardo Barraza

In August 2000, under the lead of the Democratic RevolutionaryParty (PRD), the Legislative Assembly of the Federal District reformed thePenal Code and related procedures to admit new forms of legal abortion andto create a procedure for the provision of legal abortion following rape.The reformed law provided that a pregnant woman must decide to terminateher pregnancy in a "free, informed and responsible" way, the same termsused in the formula of the right to reproduction under the nationalConstitution. The amendments were the most progressive adopted to date, andestablished for the first time, a relationship between the penal code andthe constitutional right to reproduction.

In September 2000, the National Action Party (PAN) called for the

National Supreme Court of Justice to rule on the constitutionality of thereforms. In January 2002, the Court issued its declaration (the firstdecision on abortion in the Court's history) upholding theconstitutionality of the reforms.

On February 14, 2002, the Court issued jurisprudential thesis,affirming that the Mexican Constitution protects the right to life of theproduct of conception. The Court affirmed that maternity protection in thefield of labor rights, for example, is intended to protect that life; andthat some international treaties, as well as the penal and civil codes ofMexican states and the Federal District, grant the same protection.

The Court resolved the seeming contradiction between theconstitutional protection of the right to life of the product of conceptionand the legality of abortion by reasoning that the exceptions under penalcode (e.g. fetal impairment, woman's health) are absolutory excuses. Thatis, "letting survive in the law the criminal nature of the conduct or factconsidered as crime, [the State] refuses to apply the penalty" in light ofpolitical or social reasons.

In Mexico, as in other countries, the Supreme Court sought tode-politicize the issue of abortion. The Court adopted a compromisedposition, satisfying every party in at least some important respect. Theissue was moved from the arena of legislative bodies, where it is anexplosive matter, to the (apparent) neutral confinements of judicial bodies.

This understanding of the Court's role may explain the paradoxicalreactions to the Court's decision. On the one hand, more than 20non-governmental organizations who advocated for reproductive and abortionrights in Mexico celebrated the affirmed constitutionality of the reforms.The reforms were sufficient to ensure real change in the Federal District,and to develop procedures to ensure women's access to abortion followingrape. More importantly, the constitutionality of the Assembly's actionsconfirmed that other local legislatures (31) could likewise adopt similarreforms.

On the other hand, PAN and the Catholic church leaders applaudedthe Court's acceptance of the right to life of the product of conception,and its recognition that abortion is always to be understood as criminal innature. Some ministers affirmed, indeed, that the fetus has rights from itsconception in terms identical to the claims of PAN and Catholicrepresentatives.

In a book authored by the ministers, five of the 11 of them statedwith regret that neither party understood the authentic meaning of thedecision, exclusively juridical in their opinion. Nevertheless, it is clearthat the Mexican Court sought to eliminate, once and forever, thepossibility of a right to legal abortion, and the political consequences ofsuch a rights-based construction.

For a detailed version of this paper, please contact Professor Eduardo

Barraza: