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Mexican Supreme Court Issues Final, Limited Ruling on Abortion

Piero A. Tozzi, C-FAM

(NEW YORK – C-FAM) Mexican pro-life lawyers are claiming at least partial victory in a final decision just handed down by the Mexican Supreme Court. In a convoluted document of more than 1,000 pages, the Supreme Court provided the legal reasoning behind its August 2008 initial decision upholding the legislative act of Mexico City that allowed for abortion up to the 12th week of gestation. What the Supreme Court did not do was establish abortion as a constitutional right that would affect all states and jurisdictions in Mexico.

According to Wenceslao Renovales, a Mexican attorney who was involved in challenging the law passed by Mexico City’s Legislative Assembly, the decision does not grant a broad-based right to the procedure. Rather, the chief implication of the Court’s holding is that there is “no constitutional obligation to criminalize abortion.” Thus, under Mexico’s federal system of government, abortion remains a criminal offense in those states maintaining laws protecting unborn life.

Moreover, the unborn appear entitled to at least some juridical protection, if not the rights of full personhood. Renovales told the Friday Fax that most of the 11 justices accepted the argument that the fetus is a “juridically-protected good,” or “bien jurídico tutlelado.”

Renovales stressed that each judge who wound up upholding the law did so for a different reason, while the dissenting justices issued a unified dissent that considered the liberalized law unconstitutional. According to Renovales, the lack of unified reasoning in the majority concurrences means the ruling cannot be interpreted broadly to overrule other laws.

Another victory for pro-lifers is that it appears that only two of the concurring justices mentioned supposed international treaty obligations as a rationale for abortion rights. Three years ago the Colombian constitutional court mandated revision of that country’s abortion laws and cited statements of the United Nations Committee on the Elimination of All Forms of Discrimination Against Women as a reason. The Mexican court did not do this. [This expansive reading of a country’s obligations under international law was opposed in an informal amicus brief submitted to the Mexican Supreme Court last year by the International Organizations Law Group, the public interest law arm of the Catholic Family and Human Rights Institute, or C-FAM, publisher of the Friday Fax.]

The breakdown among the judges provides an interesting political footnote: four of the judges who voted to uphold the liberalized abortion law were nominated by Vicente Fox, a member of the Catholic-dominated National Action Party (known by its Spanish acronym PAN). Fox, the first modern Mexican President elected from an opposition party, was generally regarded as pro-life, as is his PAN successor, current Mexican President Felipe Calderon.

The three dissenting pro-life justices were nominated by presidents from the traditionally left-wing Institutional Revolutionary Party, or PRI. PRI’s roots can be traced to Mexico’s anti-clericalist revolution of the 1920s, and it dominated Mexican politics for decades.

The Supreme Court will likely again visit the abortion issue in the near future. A number of Mexican states enacted constitutional provisions protecting life from the moment of conception in response to the liberalization of Mexico City’s abortion law, and a challenge to Baja California’s constitutional provision is slated to be heard by the Supreme Court.