By Rocío Gómez1
October 2023 

Mexico: The First Chamber of the Court Ruled that It Is Unconstitutional for the Federal Penal Code to Criminalize Abortion.

What Was the Law Prior to this Decision?

Mexico has a Federal Penal Code (CPF), and parallel to that, each state has its own Penal Code. The ruling, discussed below, declared unconstitutional the abortion articles in the Federal Penal Code.

While the Federal Penal Code is applicable throughout the Republic for federal offenses, it was unusual for the Attorney General of the Republic to prosecute abortion crimes. Between 2001 and 2019, there were only 14 cases of official prosecution.2

Internally, eleven out of a total of thirty-one states plus Mexico City allow unrestricted abortion up to 12 weeks of gestation with a simple request from the woman, regardless of the reasons.3

The final public version of the judgment is known as the “enlargement,” but it has not yet been published. This enlargement typically clarifies the reasoning of the vote. In this case, there were two votes: one to meet the requirements for the decision to become binding precedent, which was the vote regarding the reversal of the appealed judgment, and another to address the matter of relief for the complaining organization. It is not expected that the enlargement will cause significant changes in the overall decision.

The result of this ruling4 is part of a trend that began in 2021, when the Supreme Court decided three cases5 declaring unconstitutional the provisions of the penal code in three Mexican states that penalized both abortion for women and those who perform it.

The precedent, which has led both local courts and legislatures to decriminalize abortion, was case 148/2017 from the Coahuila region. By a unanimous vote of 10, it held that it is unconstitutional to penalize women for any reason for having an abortion and that abortion in the case of rape should be allowed up to five months of gestation.6

Next, we will analyze what we could call a fourth precedent from the Supreme Court, which has the aim of influencing states to decriminalize abortion throughout the country.

Original Jurisdiction Lawsuit and What the First Chamber of the Supreme Court Established

About the Lawsuit and the First Ruling

Ruling 267/2023 arose from an amparo action [a lawsuit to protect constitutional rights and liberties] filed by the Civil Organization “Grupo de Información en Reproducción Elegida” (GIRE, in Spanish), whose social purpose is the promotion and defense of women’s human rights, with an emphasis on sexual and reproductive rights. GIRE requested the court declare unconstitutional articles 330 to 334 of the Federal Penal Code7 for infringing on the rights to personhood, health, equality, non-discrimination, and the reproductive autonomy of women, as well as what they refer to as persons with the capacity to gestate.8

The original jurisdiction judge dismissed the association’s request, stating that the civil organization did not prove that the contested laws had caused it real harm. The judge also established that the rights the complainant claimed as unconstitutional only affect natural persons and not legal entities, so they cannot be affected by these regulations in that sense. Finally, for the association to claim a legally protected interest affected by these laws, it should be an organization whose primary purpose is the practice of abortions. The judge concluded that since the Mexican penal system does not recognize criminal responsibility for legal entities but only holds natural persons accountable, a natural person should be the one to claim a legal interest. Therefore, the action was dismissed.

The GIRE civil association filed an appeal in which they argued that the original jurisdiction judge confused legal interest with legitimate interest. Although the association cannot prove that the laws directly affect them in the same way as they would affect a natural person, they argued that the laws do indeed affect them because they are an organization focused on the defense and promotion of abortion, and the legal framework prevents them from pursuing their objective without facing penalties.

Statement of the Reasons for the Ruling

The Supreme Court held in favor of the civil organization and granted their request. In its decision, it analyzed six principles. To do so, it used a gender perspective that is supposed to help identify and eliminate power imbalances between parties due to their gender.9 However, as we will see later, this perspective only serves to bias its decision to meet this standard.

It’s worth clarifying that the gender perspective, while it began as an idea to promote equal treatment between the sexes, has gradually shifted its focus to encompass ideological and political trends that oversimplify the concept of gender, including new concepts like sexual orientation. “The ideology’s ambiguity, which links the natural dimension of sex to the cultural, now requires a new perspective that is capable of showing the integrity of the human being in both their individual and social dimensions, as well as the necessary complementarity and shared responsibility between men and women.”10

Next, we will highlight the most relevant excerpts from each of the principles and point out their inconsistencies:

  1. Human Dignity

The court begins with a good analysis of what human dignity means, stating that “the higher value of human dignity constitutes an essential prerequisite for enjoying the rest of our human rights”11 and in accordance with the constitutional text, it is “deserving of the broadest legal protection, because it is the basis and condition for the enjoyment of other rights and for the full development of personhood.”12 (emphasis added).

However, shortly after starting, the ruling contradicts itself as it only analyzes the dignity of women and ignores the dignity of developing human life. Even though the ruling explicitly mentions broad protection for human dignity and that, even if these rights are not recognized in the constitutional text, they are implicit in the fundamental law and in the international treaties to which Mexico is a party, the ruling does not include this premise in its first conclusion. This is because it states that, due to their dignity, women can freely choose what to do with their bodies and build their identity and destiny autonomously, without specifying the extent of the protection for the human dignity of the unborn person.

This reasoning is inconsistent because the ruling recognizes that both the constitutional text and international treaties recognize the supreme value of human dignity and also, as we will explain later, value the human person in gestation, interpreting this supposed coalition of rights, but ignores a fundamental legal principle called “favor debilis.” This principle establishes that when “considering the legal effects of certain legal acts, weak parties must be protected from their weakness.”13

The unborn person is in a position of complete inequality with the woman because their life depends on the woman’s will for the unborn child to develop and be born. The Court itself understands the unique relationship that a woman has with the unborn person, without whose will the unborn child cannot thrive. However, by disregarding Mexican law and the obligations assumed in international treaties, the ruling chooses to give precedence to the woman’s decision.14

Thus, the ruling misinterprets the principle of human dignity, making a partial and restrictive interpretation that ignores the unique nature of a dependent relationship where priority should be given to the party in a more disadvantaged position.

  1. Autonomy and the Free Development of Personhood

This section begins by referring to the concept of autonomy of the development of personhood used in decision 148/2017, stating that it means “the capacity of a person to choose and fulfill their life plans and ideals of human excellence freely and autonomously, without the unjustified intervention of third parties or the state’s own power.” Under this concept, it also includes a corollary, which is reproductive autonomy. Using both concepts, it concludes that a woman cannot be compelled to be a mother, and using the term “forced motherhood,” the State cannot interfere in an intimate decision that would primarily affect the woman.

When making a holistic analysis of the situation of a woman who has to go through an unintended or unwanted pregnancy, we can see that two interests are affected: those of the woman and the unborn person. In this regard, the law focuses solely on protecting the interests of the woman. It ends up disregarding that there is a developing human life that should be given the opportunity to thrive. However, the ruling focuses on giving the woman the opportunity to choose whether she wants to become a mother or not: “so it allows the woman or the person with gestational capacity, as possible  mothers, to choose who they want to be, as motherhood is based on the notion of will, the desire for one’s personal life to go through this stage.”15 With a vision focused solely on the woman and her alleged right to decide, it is clear that no other interpretation is allowed. Therefore, it is evident that the Court does not view the developing embryo as a legal interest worthy of protection.

The ruling also disregards that going through a pregnancy does not imply that the woman must exercise motherhood. There are numerous shelters throughout Latin America with experience in supporting women with unwanted pregnancies who successfully give birth to the baby and then place the baby for adoption, allowing both the woman and the child to move forward. This has happened with women without a stable partner, women who are already mothers, women with a stable partner but who do not want to be mothers at the moment, and so on.16 Experience has also shown that many of them end up deciding to keep the baby.

Finally, when the ruling holds that the State may not use its punitive power to punish a woman who wants to have an abortion, it is necessary to recall the basic principles of Criminal Law. It exists to protect legal interests. Life, being the first and most indispensable of all, makes it imperative for the State to use the Penal Code to criminalize an action that endangers a legal interest worthy of protection. We will further develop this point later.

Regarding the free development of personhood, the Court seems to confuse the causality inherent to human actions with gender stereotypes that assign the role of mother to women in the context of enjoying their sexuality.17 There is no gender stereotype that imposes motherhood on women. In most cases, their pregnancy results from a free and voluntary decision to engage in sexual actions. Later, motherhood is not imposed on them because they can choose to give the baby up for adoption. We will analyze cases of non-consensual pregnancies in more detail later.

  1. Legal Equality

The Court assumes that establishing a right to decide would achieve the following objectives:

  • Achieving real equality between men and women.18
  • Eliminating gender stereotypes assigned to women in relation to the enjoyment of their sexuality.
  • Disassociating the social construct created around the woman-mother dichotomy.19
  • Incorporating a vision of non-submission or non-domination between genders.20

While all of these are noble objectives aimed at achieving real equality between men and women, what is ultimately achieved is the entrenchment of inequality and subjugation, simply because it reverses roles, turning the subjugated into the subjugator. The woman, who is intended to be liberated from such subjugation, does so at the expense of the life of a developing human being.

Furthermore, the Court references the statements of the CEDAW Committee, which states that “the criminalization of abortion, the denial or postponement of an abortion, as well as the refusal to provide post-abortion care, constitute forms of gender-based violence that can amount to cruel, inhuman, and degrading treatment. Therefore, the committee urged the repeal of all provisions that penalize elective abortion.”21

It is worth analyzing this argument, which is frequently used by those advocating for the decriminalization of abortion. Firstly, pregnancy does not inherently constitute cruel treatment, as long as human life is protected by law from conception. For example, if the legislation decriminalized the crime of neglecting people, of course, someone in a hurry who does not value human life may find it torturous to disrupt their plans to help someone in need. However, both pregnancy and assisting a person in need do not inherently constitute torture as long as they are legally protected interests.

On the other hand, the unborn child, who comes into existence without their own involvement, has no will to attack or torture their mother; in fact, they have no intention at all. Their mere existence and preservation are aimed at the development of their life, and not only is there no malicious intent, but the purpose is good and transcendent.

It is also worth noting that, in the majority of pregnancies, conception occurs as a result of a choice or a consensual act between the parents, implying tacit acceptance of the responsibilities and the process associated with a potential pregnancy. In most cases,22 both the woman and the man have numerous options and opportunities to avoid pregnancy. Under this premise, it is not clear why their negligence should be paid for with the life of the unborn child.

It is not feasible for the state to accept any of the claims made by the complainant, as it would lead to totalitarian absurdities. The role of a civilized state must necessarily be limited to ensuring the intrinsic dignity and freedom of its citizens without violating anyone’s life and liberty along the way. Being a mother is the consequence of a specific act. Therefore, turning it into a “decision” only misinterprets reality. One becomes a mother from the moment one carries a child in the womb, which is from the union of male and female genetic material. This is nothing more than a consequence of a prior decision. Asserting otherwise leads us to violate the freedom and life of the unborn citizen.

If we apply this “logic” (if it can be called that) to other scenarios, we end up with absurd questions like the following: “If getting married is a right, and I choose to get married, then is the state obligated to find me a spouse?” Obviously not. Otherwise, the state becomes a fulfiller of wishes, abandoning its purpose, which is to be the protector of rights.

Additionally, the ruling raises the CEDAW committee’s concern that certain Mexican states have included provisions in their local constitutions seeking to protect the life of the individual beginning at conception. In this regard, two things should be noted. Firstly, the committee in these recommendations exceeds its authority. The most sovereign act of a country or its states is to enact its own constitution, and the CEDAW committee goes against this by criticizing that such an act does not uphold the principles the committee seek to impose. Secondly, it is lamentable how a Supreme Court, instead of defending its sovereignty and that of the states that make up its country, submits to this ideological colonialism that seeks to destroy state sovereignty.

Finally, after analyzing some provisions of the Inter-American Court that request Mexico to eliminate, in fact and in law, provisions that reinforce gender stereotypes, it erroneously states that “national and international documents concur in including, as a pillar and foundation of the right to decide, the prerogative of women not to be victims of gender discrimination, which includes the elimination of stereotypes that may result in gender-based violence.”23 It should be noted that the Inter-American Court has never affirmed the existence of such a right to decide. In fact, in numerous cases24 where it could have expressed it, it did not. This is done with the awareness that there is no consensus among countries on such a right to decide. It is clear how the Court selectively interprets precepts established by international organizations to eliminate other circumstances such as violence against women, sexual harassment, and torture.

  1. The Right to Health and Reproductive Freedom

In this section, the ruling begins by stating that “the right to health, in its broadest sense, is understood as the right of every person to enjoy the highest attainable standard of physical, mental, and social well-being, and it has a direct impact on protecting the right of women and persons with gestational capacity to decide whether to continue or terminate their pregnancy.”25

The ruling then analyzes the state’s obligation to provide its citizens with appropriate access to the right to health, indicating it involves three types of obligations:

– The obligation to respect the right to health, which entails not denying or limiting access to preventive, curative, and palliative health services for all individuals on an equal basis and refraining from imposing discriminatory practices.26

– The obligation to protect the right to health, which entails the adoption of laws or other measures to ensure equal access to health care.27

– The obligation to guarantee the right to health, which entails the obligation to adopt positive measures that allow individuals and communities to enjoy their right to health.28

The first alarming aspect of these provisions is that it focuses only on these duties being owed by the state in favor of women but ignores the unborn child. The Court then establishes a series of conditions that institutions should meet to provide adequate access to health care.

Subsequently, the Court reaches a conclusion that, in our view, is the most discordant and incoherent part of the judgment. It states:

However, according to the constitutional guarantee of the right to health, it is not enough to have the freedom to autonomously make decisions about one’s own health; it is essential to have the corresponding assistance to execute these decisions properly. Moreover, one must take into account the profound social inequality in which people face greater obstacles to access the most basic health services due to their membership in historically disadvantaged groups.29

What is alarming is that all that the Court establishes regarding freedom to make autonomous decisions and the need for assistance only refers to women, completely ignoring the assistance required by the unborn child to develop. Regarding the assertion that women have historically belonged to disadvantaged groups, the Court also fails to recognize that unborn individuals have been and continue to be even more disadvantaged.

Within this section, the Court bases its entire argument on a term, which is the fallacy of “risk-free abortion.” It states that “risk-free abortion guarantees the right of women and individuals with gestational capacity to access the highest level of health possible.”30 Once again, it becomes evident how the pro-choice position uses euphemisms to disguise reality. First, because there is no such thing as a risk-free abortion; a single case of death from legal abortion is sufficient to justify that legal abortion also entails risks. This was the case of María del Valle31 in Argentina, among many others.32

Furthermore, it is alarming how the Court, without explicitly stating it, perhaps unintentionally places abortion on the same level as family planning or sex education.33

Under this title, there are two considerations that seem to have lacked prior reflection on the part of the Court because they involve fallacies.

Firstly, the Court states that a woman’s firm conviction and reflection about becoming a mother aims to debunk the assertion that guaranteeing the right to decide devalues the unborn child34 and that only the firm conviction and determined participation of the woman can provide greater protection to the elements at play: her right to choose and the protection of the constitutionally relevant interest (the unborn child)35. What the Court has not explained is how a woman’s mindset, which concludes that abortion is the best option, would result in greater protection for the unborn person. In this sense, abortion decriminalization also affects a woman’s mindset by presenting it as an acceptable possibility that will end her problem without specifying the risks involved.

In the second place, paragraphs 106 and 107 establish that a woman’s right to decide whether to continue with her pregnancy comes into play when the continuation of the pregnancy simply disrupts a woman’s future expectations. Contending a woman has the right to eliminate anything that disrupts her future expectations is absurd because it would give rise to the assertion of rights that do not exist because they are not constitutionally relevant interests. As we said before, the State does not fulfill wishes.

  1. The Right to Decide and Its Specific Implications for Abortion

In this section, the Court makes several inaccuracies that we’ll point out below:

  • First, the repercussions of the Artavia Murillo ruling are evident, because protections for the unborn child eroded to establish a supposed right to decide. The Court adheres to the progressive protection theory of the unborn person, which considers the development of characteristics that define a human being (consciousness, reaction to the environment, the ability to feel pain, etc.), along with the unborn child’s possibility of surviving independently outside the mother’s womb.

Embracing this perception of protecting human life leads to dehumanizing legislation. Many humans, for various reasons, do not react to their surroundings, lack consciousness, or cannot feel pain. Faced with this, we must ask, what human characteristics show an individual deserves protection? It becomes clear that it cannot be based on something accidental but rather something substantial, which is the developing human being. An individual holds this characteristic because their parents and their matter are human.

  • While the Court rightly acknowledges that there is no consensus in ethical, moral, philosophical, scientific, and legal criteria for determining when human life begins and when it deserves state protection,36 the Court once again disregards the principle of favor debilis in legal interpretation. This principle requires taking into account the situation of one party in a legal relationship if that party is in a position of inferiority compared to the other.37

Bidart Campos, on the other hand, explains that “in interpreting situations involving conflicting rights, it is necessary to give special consideration to the party who, in their relationship with the other, is in an inferior position or, negatively put, is not on equal footing with the other.”38 This fundamental principle of legal interpretation is chosen to be ignored by the Court, giving way to a supposed right of the woman, to the extent that it completely nullifies the most basic human right of the other party in the legal relationship, which in this case is innocent of any crime and defenseless.

  • In paragraph 119, the ruling falls into an undeniable contradiction by referring to the unborn child as an expected being. An expected being implies something that does not yet exist, something expected to exist in the future but does not currently exist. However, the Court dedicates an entire sentence to explaining why a woman has the supposed right to decide. But if the unborn child is something that does not yet exist, why engage in extensive speculations? Moreover, in the following sentence, the Court acknowledges that the embryo “that is not yet” or “that does not yet exist” is constantly developing as the pregnancy progresses.39 This raises the question, how can something that does not yet exist be in constant development? Such an inconsistency may go nearly unnoticed in the entirety of the judgment, but it is necessary to highlight it to expose the illogical syllogism the Court employs to justify the unjustifiable.
  • In paragraph 127, the Court again makes an inaccuracy to justify the alleged right of women. While it correctly states that the right to life is not absolute, it ignores that the only circumstance in which taking the life of another person is allowed is in cases of self-defense. As explained earlier, the unborn child does not intend to harm and indeed has no intention whatsoever. Even in cases where a woman’s life is unintentionally threatened, for example, when her life is at risk, it is permissible to apply any necessary treatments to preserve her life, without directly seeking the death of the unborn person, although it may result and be accepted as an indirect and unintended result by medical science.
  • Lastly, in paragraphs 131 and 134, the Court establishes that to make the right to decide compatible with the right to the life of the unborn person, abortion can only be performed within a short period close to conception,40 and the reasonable period it establishes is 12 weeks. This ultimately becomes the conclusion of a Court that does not recognize the being of the embryo and pretends that it does not exist until the 12th week; that chooses not to favor the weaker party in the legal relationship; and by claiming that such a human being does not feel, does not relate to its environment, and lacks consciousness, it diminishes the importance of its life, making it disposable and creating a scene of threat to the possibility of the pregnancy disrupting their plans.
  1. Concrete Application in Articles

This section applies the previously mentioned arguments to specific articles. However, it adds some inaccuracies that are worth highlighting: 

The Court makes a serious error regarding the scope of criminal law. It claims that the punitive approach is ineffective in achieving its goal of deterring abortion and, at the same time, negates the alleged right to decide.41 It emphasizes that women who do not want to be mothers often resort to back-alley abortions,42 which often cost them their lives, and therefore, abortion should be decriminalized.

Two significant inaccuracies need to be highlighted here. First, the function of criminal law is to protect legally relevant interests, and the effectiveness or ineffectiveness of it should not be a reason to abandon the protection of these interests. Nobody would argue, for example, that because theft is on the rise in a particular region, the solution is to decriminalize theft. Furthermore, it is not proposed that the root cause of the deaths in police-civilian shootouts, namely robbery, would be eliminated by decriminalizing robberies.

Criminal law, as an exercise of a state’s punitive power, is meant to protect legally relevant interests. Life, as well as property, constitutes legally relevant interests. It is true that in a region where theft is increasing every day, criminal law alone may not be sufficient to eliminate it. Additional measures, such as social work, psychological support, and material and financial assistance to those at risk, might be necessary to solve the problem. However, that is outside the scope of the present issue. For the preservation of a rule of law, the state has an obligation to protect legally relevant interests.

Contrary to what the Court states, the criminalization of abortion does not “preclude less restrictive protective options, such as counseling and support for pregnant women, which enable them to make informed decisions, or the adoption of policies on sexual education, family planning, and the use of contraceptives, among other measures.”43

Lastly, it’s important to emphasize how the existence of criminal laws influences public opinion. In countries where abortion laws have been decriminalized for a longer time, the percentage of the population in favor of allowing abortion at any stage and for any reason is higher.44

The last point we will address in this analysis, perhaps the most sensitive of all, is the issue of non-consensual pregnancies. The Court, seeking to decriminalize abortion in cases of rape, states:

The criminalization of abortion resulting from sexual assault, as contemplated in Article 333 of the Federal Penal Code, disregards the situation in which a woman or a person capable of gestating is placed. This person, in addition to having suffered the violent invasive act, becomes pregnant, a situation aggravated by their context and personal conditions (age, education, marital status, family integration, etc.)45

Relativizing the protection of human life at its earliest stage of development, as we saw before, leads to a misdirection of the real problem. First, the state’s punitive power should protect legally relevant interests from all possible threats. The unborn person is an innocent third party unrelated to the crime perpetrated against the woman. Therefore, it is not permissible for an external event to cost the unborn person’s life.

Moreover, experience shows that a woman who has gone through such a traumatic event as rape and then becomes pregnant does not need to take reprisals against an innocent person but rather against the true perpetrator of the crime. In a penal system that simply offers abortion as an option to the raped woman without fully deploying its punitive apparatus to find and prosecute the real culprit is failing in its function.

Numerous women who have been supported by pregancy centers have testified in support of this conclusion. For example, the testimony of Lianna Rebolledo, who was raped at the age of twelve and chose to continue her pregnancy, reveals:

It saddens me greatly because they are blaming the baby. They don’t blame the rapist, and they want to give the baby the death penalty. My baby had my blood, my DNA, and was only mine. She was inside my body, and I knew my baby had nothing to do with the crime. It’s just an excuse. I feel they have so much hatred that they want to use it to take advantage of your suffering because if they really wanted to help you, they would offer scholarships, legal assistance, medical care, and psychological help for the post-traumatic stress disorder we struggle with. They never mention anything about post-traumatic stress disorder. That was something that was killing me. But just knowing I had my baby? It helped. It helped me heal. And I knew my daughter had a purpose in life, and she gave me the strength to move forward. She gave me hope. She showed me what real love is, and thanks to her, I am who I am now.46

Abortion in the cases of rape is a failure. It is the failure of a system that does not know how to solve the real problem and offers a short-term solution that ultimately plunges the woman further into suffering. This is because it is nothing more than a different way of perpetuating a structure of inequality and abuse against the weaker party. Nobody intends to impose motherhood on a child who is not of an age to bear that responsibility, which is why we do not believe that the idea of “forced motherhood” or “mandatory motherhood” coined by the Court is real. With proper support for the woman, she can give birth to the child and give him or her up for adoption to the many couples who spend years on waiting lists to adopt a baby.

What Happens After this Decision?

The text itself establishes that it does not apply generally throughout the entire territory, but grants amparo (a form of legal remedy) as “a specific means of deciding the constitutional issue. Therefore, its effects only affect the legal rights of the complaining party and are closely linked to the harm they suffered in the exercise of their rights.”47

The Court ruled that women and individuals with the capacity to become pregnant who want to have an abortion and are accompanied by the complaining civil association, GIRE, cannot be penalized. The “effect is also retroactive for the benefit of those individuals who are currently being prosecuted or sentenced for this offense, provided they have the support of the civil association.”48

At no point does the ruling require the states to legislate on the matter or give them a deadline to do so. Abortion remains a crime in the Federal Penal Code.

We could say that, according to the new system of judicial precedents in Mexico, this judgment (unlike previous ones) will set a binding precedent for all judicial authorities in the Federation and the federal entities, as it was approved by the first chamber with a majority of four votes.49

Conclusion

It is clear that the Court is engaging in strong judicial activism through this decision. Compliance with the standards of the 2030 Agenda and the growing influence of the “green wave” and ideologies reaches the highest levels of decision-making. However, it is unfortunate to see how, little by little, countries are losing sovereignty and autonomy of thought because there is diminishing protection for human life that is only possible through inconsistencies, the use of euphemisms, and half-truths.

It remains to be seen whether the enlargement of the ruling maintains all these principles or changes the meaning of any of them.

To read this report in Spanish, translate our website using the translate option within the side menu, or download it here.

  1. Attorney. Senior Fellow Latin America. Americans United for Life. ↩︎
  2. Information available at: https://www.bbc.com/mundo/articles/cp98d0njylpo ↩︎
  3. See reference information available at: https://politica.expansion.mx/mexico/2023/08/31/estados-mexico-aborto-legal ↩︎
  4. Amparo action 267/2023. Full text of the judgment available at: https://www.scjn.gob.mx/sites/default/files/listas/documento_dos/2023-08/230830-AR-267-2023.pdf  ↩︎
  5. The cases were: 
    1)Unconstitutionality Action 148/2017. Supreme Court of Mexico. Full text of the judgment: https://www.scjn.gob.mx/sites/default/files/proyectos_resolucion_scjn/documento/2021-08/AI%20148.2017.pdf; 
    2)Unconstitutionality Action 106/2018 and its joint action 107/2018. https://www.scjn.gob.mx/sites/default/files/proyectos_resolucion_scjn/documento/2021-08/AI%20106-2018%20y%20acumulada%20107-2018.pdf; 
    3) Unconstitutionality Action 54/2018 of Article 10 bis of the General Health Law.  
    Full text of the judgment available at:  
    https://www.scjn.gob.mx/sites/default/files/proyectos_resolucion_scjn/documento/2021-08/AI%2054-2018%20-%20PROYECTO.pdf  ↩︎
  6. See the report “Abortion doesn’t force you to abort, but in Mexico, they want to force us to kill” available at: https://aul.org/wp-content/uploads/2022/06/Mexico-SP.docx.pdf ↩︎
  7. Translation of the text from the articles in question: 
    Article 330. Anyone who causes a woman’s abortion shall be sentenced to one to three years of imprisonment, regardless of the means used, as long as it is done with her consent. When it is non-consensual, the imprisonment shall be from three to six years, and if there is physical or moral violence, the offender shall be sentenced to six to eight years of imprisonment. 
    I. Who has a good reputation; 
    II. Who has managed to conceal her pregnancy, and 
    III. Whose pregnancy is the result of an illegitimate union. 
    Article 331. If the abortion is caused by a doctor, surgeon, midwife, or nurse, in addition to the penalties that apply under the previous article, they will be suspended from practicing their profession for two to five years. 
    Article 332. A mother who voluntarily procures her abortion or consents to another person causing her abortion shall be sentenced to six months to one year of imprisonment if these three circumstances are present: If any of the mentioned circumstances are missing, they shall be sentenced to one to five years of imprisonment. 
    Article 333. Abortion caused solely by the imprudence of the pregnant woman or when the pregnancy is the result of rape is not punishable. 
    Article 334. No penalty shall be imposed when, if the abortion is not performed, the pregnant woman is in danger of death, as determined by the attending physician, provided that this assessment is heard by another physician when possible and a delay is not dangerous. ↩︎
  8. Amparo action 267/2023. Paragraph 24. Both the judgment and the complaint are imbued with a gender perspective. Throughout the text, while referring to women, they also talk about people with the capacity to gestate, referencing women who self-identify with a different gender but still retain their ability to gestate precisely because they are women. This effort to avoid supposed discrimination not only complicates the reading but, above all, reveals the ideological bias driving the decision’s rationale. ↩︎
  9. Ibidem paragraph 24. ↩︎
  10. Santa María D’Angelo, “Rafael from Gender to the Family Perspective: Elements for a New Proposal” is an academic article published in the journal Díkaion, Volume 22, Number 2, in December 2013, pages 273–302, from the University of La Sabana in Cundinamarca, Colombia. You can access the article at the following link: https://www.redalyc.org/pdf/720/72031061005.pdf ↩︎
  11. Refer to Paragraph 32 ↩︎
  12. Refer to Paragraph 34 ↩︎
  13. Finnis, John. 1980: Natural Law and Natural Rights. Spanish translation by Cristóbal Orrego Sánchez of Natural Law and Natural Rights, 2000. Buenos Aires: Abeledo Perrot, 315. ↩︎
  14. Refer to Amparo action 267/2023. Paragraph 47. ↩︎
  15. Refer to Amparo action 267/2023. Paragraph 47. ↩︎
  16. Testimonies of the experience of the Chile Unido Foundation that have saved more than five thousand children from being aborted, and no woman has regretted such a decision. See also the testimony of Lianna Rebolledo available in this report. ↩︎
  17. Refer to Amparo action 267/2023. Paragraph 61. ↩︎
  18. Ibid paragraph 58. ↩︎
  19. Ibid paragraph 61. ↩︎
  20. Ibid paragraph 62. ↩︎
  21.  Ibid paragraph 66. ↩︎
  22. We make this emphasis because there are exceptional cases, such as pregnancies resulting from abuse or rape, which we will address later. There are also cases in which women do not have access to the information or the necessary means to prevent a pregnancy. ↩︎
  23. Amparo action 267/2023. Paragraph 72. ↩︎
  24. In both the Manuela case and the Beatriz case, as well as in the Artavia case, due to the subject matter of their decisions, which was related to sexual and reproductive rights, the international community expected them to rule on the existence of a supposed right to abortion. However, none of the cases established such a right. ↩︎
  25. Amparo action 267/2023. Paragraph 81. ↩︎
  26. Ibid paragraph 84. ↩︎
  27. Ibid paragraph 86. ↩︎
  28. Ibid paragraph 87. ↩︎
  29. Ibid paragraph 91. ↩︎
  30. Ibid paragraph 99. ↩︎
  31. News articles about the young María del Valle who died after ingesting misoprostol pills that were administered to her in accordance with the legal abortion implemented in Argentina: https://www.infobae.com/tag/maria-del-valle-gonzalez-lopez/ ↩︎
  32. Death case of a young girl due to legal abortion in Uruguay, article available at: https://www.swissinfo.ch/spa/uruguay-aborto_adolescente-de-14-a%C3%B1os-muere-durante-procedimiento-de-aborto-legal-en-uruguay/46310912 
    In the report carried out by the “mirar” project, which emerged in Argentina after the decriminalization of abortion to monitor the effects of this legal change, it is established that in 2021, there were 13 maternal deaths due to abortion, without specifying whether they were related to legal or illegal abortions. This suggests that they were likely due to legal abortions because if it had been otherwise, they would have specified it to legitimize the existence of the law. 
    The report concludes by acknowledging what those who opposed abortion, especially those supported by works such as those of Elard Koch, had argued: that the reduction or non-reduction of overall maternal mortality cannot be attributed to the legality or illegality of abortion. Now, with legalized abortion, there are still maternal deaths, and the causes of these deaths still require attention. Abortion is not the solution. (The report on abortion statistics in Argentina for the year 2022 and its omissions) ↩︎
  33. Amparo Action 267/2023. Paragraph 98. ↩︎
  34. Ibidem. Paragraph 98. ↩︎
  35. Idem. ↩︎
  36. Ibidem. Paragraph 117. ↩︎
  37. anili [2003], p. 223. ↩︎
  38. Bidart Campos, Germán. (2001): “The Sources of Constitutional Law and the Pro Homine Principle,” in Bidart Campos, Germán and Gil Domínguez, Andrés (eds). Constitutional Law in the 21st Century: Diagnosis and Perspectives. Buenos Aires, Ediar Publishing, pp. 11–22. JOHN FINNIS, “to assess the legal effects of assumed legal acts, weak individuals must be protected from their weakness” https://filadd.com/doc/principios-iinterpretativos-u2-1-docx-derechos ↩︎
  39. Amparo Action 267/2023. Paragraph 119. ↩︎
  40. Ibidem. Paragraph 131. ↩︎
  41. Ibidem. Paragraph 147. ↩︎
  42. bidem. Paragraph 148. ↩︎
  43. Ibidem. Paragraph 149. ↩︎
  44. Percentage of the population in favor of allowing abortion in selected countries around the world in 2022. Available at:  
    https://es.statista.com/estadisticas/612524/porcentaje-de-poblacion-a-favor-del-aborto-en-cualquier-circunstancia-por-pais/ ↩︎
  45. Amparo Action 267/2023. Paragraph 194 ↩︎
  46. Testimony of Lianna Rebolledo. Excerpt from an interview with Lila Rose. Available at: https://familia.anahuac.mx/testimonio-impactante-de-lianna-rebolledo/ ↩︎
  47. Amparo Action 267/2023. Paragraph 219. ↩︎
  48. bídem. Paragraph 231. ↩︎
  49. The National Constitution in Article 94 mandatorily applies these types of judgments to all jurisdictions, providing: “The reasons justifying the decisions contained in the judgments issued by the Full Supreme Court of Justice of the Nation with a majority of eight votes, and by the Chambers, with a majority of four votes, shall be binding on all jurisdictional authorities of the Federation and the federal entities.” Paragraph added on March 11, 2021. The full text of the provision is available at: https://www.diputados.gob.mx/LeyesBiblio/pdf/CPEUM.pdf ↩︎

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