This case was the first in which the Supreme Court of Justice of Mexico discussed decriminalisation of abortion at the federal level. The case arose from an injunction filed by a woman who was denied an abortion on legal grounds in 2013. Presented by Justice Arturo Zaldívar, the case proposes that current sanctions on abortion, as prescribed by the federal Penal Code, violate the rights to personal development, sexual and reproductive health and freedom from discrimination.
“An abortion is a drama for any woman. To criminalize them is not a solution that can be upheld from a constitutional point of view,” said Zaldívar. “To condemn [women] to jail, to clandestinity, to put their health at risk, implies a neglect of their value as a person, whose wishes and interests are relevant and significant when considering the harsh decision to terminate a pregnancy.”
Zaldívar said state legislatures would have to determine at what stage an abortion would not be permitted. Mexico City did so in 2008, allowing abortions up to 12 weeks on request.
He proposed that the authorities could not interfere with a woman’s decision to have an abortion if the pregnancy represents a health risk for the woman, when it is the result of rape or unwanted insemination or when the fetus is deemed unable to survive outside the womb. He said: “It could be family or emotional problems, or the modification of their plan of life, an endless number of circumstances whose weight and value can only be known by those facing them. To evaluate the reasons that led to [a woman’s] determination to terminate her pregnancy correspond only to a woman’s heart of hearts.”
While the Court’s ruling on the injunction request would be symbolic, as the woman was able to have an abortion in a private clinic, it would have mandated the government to pay her expenses. And had the Court ruled in her favour, a constitutional precedent would have been set.
Unfortunately, the Court voted 3-1 against Justice Zaldívar’s proposals. They said, however, that new proposals on revisiting the abortion debate could be considered in the future.