Friday, October 4, the Petrie-Flom Center will host “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” from 8:30 AM to 12:30 PM. This event is free and open to the public, but registration is required.
By Patricia del Arenal Urueta
Since June of 2011, the Mexican Constitution includes a variety of clauses that would undoubtedly classify as “progressive.” Article 1 incorporates all human rights protected by international treaties into the Constitution itself; and this means that every authority (including, of course, judges) should interpret the law in order to reach the most comprehensive protection of human rights. It is a beautiful and promising text. It follows a global tendency premised on the notion that international human rights are the standard by which it is possible to scrutinize any act (or decision) claiming political and legal authority over individuals.
However, given the alarming data showing an important increase in human rights violations over the past few years in Mexico, there are good reasons to feel uneasy about the efficacy of such an ambitious amendment. There is a striking disparity between its idealistic pretensions and the appalling reality. This phenomenon has prompted questions harder to address than those concerns typically attributed to a fragile Rule of Law. In fact, some scholars and other institutions have wondered whether such constitutional discourse serves as a sham. The idea behind this argument is that a text so grand can mostly serve to mask the government’s intention (deliberate or not) to actually do the opposite; this is, to advance policy uncommitted ─or even contrary─ to human rights, and to distract the international community from facts that it would probably disapprove.
Beyond this paradox, it is undeniably true that over the past few years, human rights litigation, as a practical field of the law, has learned to rely on the language of Article 1. In fact, Courts are now used to finding a citation of the text ─and a discourse of its alleged normative implications─ in practically every lawsuit or petition addressed on behalf of “rights.”
As litigators desire to make this text more meaningful and enforceable, judges confront more challenging arguments than ever. Furthermore, standards of review have changed, and judges are allowed ─sometimes even compelled─ to revisit old doctrine. Overall, Courts know that it does not suffice to follow the Mexican constitutional text in order to conduct what now qualifies as a “thorough legal analysis.” Hence, regardless of a judge’s ideological spectrum, her legal reasoning will usually evoke the triumphant language of Article 1 ─even it is just to provide a lengthy argument explaining why she does not believe in its relevance to the case at hand.
In consequence, those who are prone to feel skeptical about the virtues of Article 1 have good reasons to balance their assessment by examining what Courts decide on its basis. Because of the legal education of the members of the judiciary ─and their faith in relying on explicit legal clauses─ they do not always have a lot of margin to deny, for instance, that the Convention on the Elimination of All Forms of Discrimination against Women is just part of our Constitution.
It is in light of this context that it may be possible to explain why it was not until 2019 that the Mexican Supreme Court remained relatively quiet about a woman’s right to get an abortion in order to protect her own health.
The argument that was elevated to the Supreme Court in the amparo en revisión 1388/2015 is obviously not a new one. We are well aware of the obstacles that women have historically faced to protect their own health due to a pregnancy that poses a threat to them. So, why did we have to wait until now for the Court to explore so thoroughly the scope of women’s right to health under such extreme circumstances?
This is an interesting question because the Mexican legal practice has always received significant influence from the United States of America. Yet, the Mexican Court did not confront his question over the late 20th century. Even if one may be wary to assert that amparo en revisión 1388/2015 is our Roe v. Wade, it is still true that we cannot find any other precedent of the Mexican Supreme Court as clear as this one on the matter.
The reasons laid on the opinion might help us find an answer: international human rights law provides the main premise to the final reasoning. The Court evokes conventional rights and discusses the standards that, according to its understanding, should follow from them.
As the reader of the decision might perceive, some of the most pressing difficulties of the case involved procedural questions related to the institution of Amparo ─which is the mechanism we use in order to demand protections usually sought through an habeas. If the Court had not believed that this decision was warranted by the dense scope of rights incorporated into the Constitution, then procedural difficulties of Amparo would have probably prevented the court from reaching it.
This hypothesis needs further exploration. However, it does seem that the weight of Article 1 has played a central role in this. Framing a health issue as a human rights issue has given the Court the confidence to ease its way into a jurisprudence that may be very difficult to produce on its own merits.
The decision achieved in amparo en revisión 1388/2015 ─and, most importantly, its timing─ show how Supreme Court Justices feel comfortable relying on the rights discourse, probably as a way to legitimate decisions that would otherwise be seen as sheer ideological preferences. The opinion uses all the legitimating power that comes with Article 1 to advance the recognition of a right for which feminists have always fought.
Patricia del Arenal Urueta is clerk to Justice Alfredo Gutiérrez Ortiz Mena.