After the local Human Rights Ombudsman filed an action of unconstitutionality, the 11 justices of the Supreme Court of Mexico gathered last month to discuss and rule on the constitutionality of an amendment to the Constitution of Baja California [Spanish, PDF] effectively banning abortions. The state of Baja California is one of 32 federal entities of Mexico.

Although politicians and news reporters have been driving the public’s attention to “pro-life vs. pro-choice” discussions, the Supreme Court’s ruling has a much wider impact on Mexico’s legal framework and case law than that revealed by the media. In fact, this is unlike the case brought to the Supreme Court’s attention in 2008, when Mexico City’s local legislature decided to partially decriminalize abortion. This time, the legal text subject to challenge is a state’s constitution, rather than a hierarchically inferior local criminal law.

The Human Rights Prosecutor of Baja California argued, before the highest judicial authority in Mexico, that a provision of Article 7 of the state’s constitution was inconsistent with the Mexican Magna Carta. The provision states that the right to life of an individual starts at conception, and from that moment the nasciturus (unborn child) shall be under legal protection and shall be considered “born” for all legal purposes, until its natural or non-induced death. By Mexican law, the action of unconstitutionality is one of the primary tools in the system of checks and balances that the judicial branch has over the legislative branch. The Supreme Court is the only court in Mexico with jurisdiction over such actions. In order to declare a law invalid and unconstitutional a supermajority of eight votes is required.

After three sessions, the Supreme Court left the Constitution of Baja California intact. The majority failed to overturn the provision by a single vote. While seven justices considered the disputed provision discordant with the federal Mexican Constitution [Spanish, PDF], the other four voted to uphold the provision. There were numerous arguments on each side. Although public and political debates outside of court influenced many of these arguments, only a few of them actually focused on providing a legal solution to the controversy.

This case was not about whether abortion should have been decriminalized, or whether or not the right to life should have prevailed over women’s reproductive rights. These matters may somehow relate to the result issued by the Supreme Court, and may later be found to be the main subject of a controversy brought to such authority. However, they should have not been the foundation of justices’ main inquiry. Some have suggested that the justices should have analyzed additional aspects of the case. In spite of this, the main legal discussion revolved around two primary topics, both being substantial and having no evident solution. This naturally caused the justices to struggle.

The first dispute between the justices was based on whether the federal constitution and the international treaties executed and ratified by Mexico infer that the right to life must be recognized from the moment of conception. The Supreme Court had to resolve this issue first since an affirmative answer would have immediately led to the amendment’s constitutionality. Since Mexico is a party to the American Convention on Human Rights, some of the justices invoked Article 4 of the convention. In part, Article 4 states: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.”

Notwithstanding this, the case remained unsolved for most justices. Mexico made an interpretative declaration to Article 4 of the convention, establishing that Mexico does not undertake any obligation to protect life “from the moment of conception.” Additionally, the federal constitution does not have any clear language regarding the protection of the right to life starting from the moment the nasciturus is conceived.

Thus, the justices continued to the second dispute: are the local legislatures able to regulate or interpret human rights recognized under supreme national law? This was perhaps the most important and polarizing discussion faced by the Supreme Court. Nearly all of the justices that voted in favor of the legality of the amendment stated that since the Magna Carta has no evident reference to the moment in which the protection of the right to life shall begin, the individual states have the right to define such moment. In addition, these justices called upon a previous judicial criterion that the states are able to expand the catalog of human rights recognized by the federal government — “All powers not explicitly vested by this Constitution on federal authorities, are reserved to the states.” This language belongs to Article 124 of the federal constitution and played an important role in supporting this position.

The other seven justices explained that while the states may be legally empowered to expand the catalog of human rights that are to be protected by the government of that state, they cannot do it if the expansion affects other human rights recognized in the federal constitution or international treaties. They made special reference to women’s reproductive rights. Likewise, these justices said that the amendment not only had an impact in the local sphere but also impacted legal principles contained in the federal constitution. For example, it could affect the moment in which one is recognized as a person for legal purposes or when one is eligible for Mexican nationality.

In addition to these issues, both sides displayed some other interesting and respectable arguments that are too numerous and detailed to mention. However, it should not be long until the Supreme Court is forced to discuss a similar issue again, and these two topics should be part of that discussion.

Furthermore, this provision could be analyzed as a part of the growth of Mexican democracy. The number of differences among states’ laws is starting to increase based on the predominant political ideologies of that state, unlike 30 years ago when the differences were minimal due to the influence of the president over most states’ policies. Democratic growth is an undoubtedly positive sign for Mexico. However, it is very important that Mexico looks at the big picture. Not to de-emphasize this otherwise important matter, but the rulings in these cases not only decide the states’ ability to determine the moment in which protection of the right to life should begin. Rather, these may also determine whether state legislatures are entitled to interpret human rights as well as the appropriate level of protection accorded to such rights, specifically when they are already part of the federal constitution.

Carlos Cisneros is an Associate at Valencia del Toro Abogados, S.C, a Mexican law firm focused on corporate law. Prior to joining Valencia del Toro, Cisneros served as legal counsel to the Mexican Senate, in addition to completing pro-bono work at the Centro Miguel Villoro Toranzo. Cisneros obtained his law degree from Mexico City’s Universidad Iberoamericana.

Suggested citation: Carlos Cisneros, Abortion Case Has Deeper Implications For Mexican Democracy, JURIST – Professional Commentary, Oct. 23, 2011, https://www.jurist.org/commentary/2011/10/abortion-case-has-deeper-implications-for-mexican-democracy

This article was prepared for publication by Yuriy Vilner, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org