MEXICO – How to understand the Mexican Supreme Court’s decision about abortion based on health risks

In Mexico, abortion is a state law matter. It isconsidered a crime in most Mexican states except for Mexico City and Oaxaca,where abortion is permitted within the first trimester of the pregnancy. In therest of the states, abortion is allowed under limited legal indications: rape,health risks, danger of death, fetal impairment, and distressing economicsituations. The legal indications are similar but not identical in the Mexicanterritory. The only legal indication for abortion that applies in every stateis rape.

In this context, what makes the recent abortionruling of the Mexican Supreme Court important?

As to the facts: denial of abortion services dueto health risks in a government-run health facility reached the Court, whoidentified three important constitutional questions:

  • Must the constitutional right to health be interpreted to include theright to an abortion due to health risks?
  • Is abortion on the ground of health risks a protected service and if so,does the constitutional right to health yield access to free abortion servicesprovided by health institutions, whether public or private?
  • Does the medical need for an abortion have to be assessed on grounds ofphysical, mental and social health?

The Mexican Court responded all three questionsaffirmatively. To do so, the Court relies on its jurisprudence that theconstitutional right to health includes freedoms and entitlements. When itcomes to abortion, the Court recognizes those freedoms to include women’s rightto make free decisions regarding their personal health outcomes and the risksthey are able or willing to take, once a risk to health due to pregnancy is assessedby a physician. As to the entitlements, the Court holds that women have theright to such medical assessment and to free abortion services, both to beprovided by health care facilities.

The Mexican Court reached this conclusionconsidering the indivisibility and interdependence of human rights. Thus, itrelated the human right to health to the right to life, the right ofnon-discrimination on the basis of gender, the right to privacy, the right to personalintegrity, and the right to free decision-making or autonomy. All of those areconstitutional rights in Mexico not only as they are explicitly enshrined inthe Mexican Constitution, but also because human rights treaties are thesupreme law of the land in Mexico.

Once the Court held that decisions regardingabortion and access to medical services when abortion is needed due to healthrisks are part of the constitutional right to health, it also ruled that healthrisks must be understood in broad terms to consider physical, mental, andsocial health… from the definition of health provided by the Protocol of SanSalvador, a mandatory human rights treaty in Mexico. This interpretation alsoallows medical professionals to consider the specific woman’s lifeexpectations, age, poverty, and distress, among other individual challengingsituations, where abortion has been understood to be outlawed, in theirassessments.

It might be worth noting that Mexican Court hasnot yet dealt with the main question regarding abortion when and where it isstill considered a crime. That is: is criminalization of abortion a violationto women’s human rights?… It may be too soon to determine the effects of theruling as it has yet to be tested against the reality of health care servicesin Mexico. How health care providers and facilities will react to and approachthis important holding is yet to be seen. Hopefully this ruling provokes publicdebate, breaks ground for further constitutional challenges in this regard, andmost importantly guarantees women access to safe abortion services.

FULL TEXT: Blog by Adriana OrtegaOrtiz, LL.M., Director of the Supreme Court’s Gender Equality Unit, who servedas Court Clerk for this case and also translated the Court’s ruling into English.

This Englishtranslation has fostered international legal discussion.At the HarvardLaw School’s recent conference on “AbortionBattles in Mexico and Beyond: The Role of Law and the Courts”two of the Supreme Court judges, Justice González Alcántara and JusticeGutiérrez Ortiz Mena, delivered keynote addresses in English, amidpresentations by other experts (e.g. on the abortion ban in El Salvador).Videosonline

Two other clerks of the Supreme Court of Mexico have published insights from other perspectives:
– David García Sarubbi, The Fundamental Right to Health and Judicial Review in México
– Patricia del Arenal Urueta, Amparo en Revisión 1388/2015 and the “Rights” Discourse in Mexico

PHOTO by Lorin Granger,Mexican justices GonzálezAlcántara and Gutiérrez Ortiz Mena with András Sajó,retired judge of the European Court of Human Rights, speak at HarvardLaw School