By Joelle Boxer
Earlier this month, Mexico’s Supreme Court issued a ruling decriminalizing abortion nationwide, setting a powerful example in the global trend of abortion law liberalization, including on the grounds of sex equality.
Hailed as “incredible” by reproductive justice advocates, the decision will be most impactful in the 20 Mexican states where local laws still criminalize abortion, potentially removing access barriers for more than 42 million women.
This article will explain the origins of the case, what the decision holds, and what it says about sex equality.
Where did it come from?
GIRE (Information Group on Reproductive Choice), a leading reproductive justice organization in Mexico, brought the lawsuit in August 2022. It was filed as an amparo, a writ seeking protection of constitutional rights. The case followed more than two decades of GIRE’s step-by-step legal strategy, making “steady progress” toward abortion liberalization. Further, it came alongside a “green wave” of liberalization in other Latin American countries, including Colombia and Argentina.
What did it hold?
The case challenged five provisions in Mexico’s Federal Penal Code: Articles 330, 331, 332, 333, and 334. They punished “anyone who caused a woman to abort her pregnancy,” as well as the woman herself, with prison time (ranging from 6 months to 8 years, depending on the circumstances). Responsible medical professionals would also be subject to suspension. Abortions were considered “not punishable,” however, when performed on pregnancies endangering the woman’s life or pregnancies resulting from the woman’s negligence or rape.
In the latest ruling, the Court relied heavily on its September 2021 decision, which struck down abortion criminalization laws in the state of Coahuila and found that women and people with the capacity to gestate held a “right to decide.” This right is grounded in constitutional guarantees, some of which incorporate international law, of human dignity; reproductive autonomy and free development of personality; legal equality; and the right to health and reproductive freedom. It encompasses comprehensive sexual education; access to information on family planning and birth control; the guarantee that women and pregnant people can make an informed decision on the termination or continuation of pregnancy; health services to support the termination or continuation of pregnancy; the provision of abortion services in federal public health institutions in an “accessible, free, confidential, safe, unobstructed, and non-discriminatory manner”; and the right to terminate for a short period at the beginning of the gestation process. The Court held that Articles 330, 331, 332, 333, and 334 violated these rights and were thus unconstitutional, either partially or in their entirety.
What does it say about sex equality?
Reproductive justice advocates and scholars have long written about the link between abortion rights and sex equality. This rationale appeared in earlier decisions of the Mexican Supreme Court and is discussed again in the latest ruling, as the third basis for invalidating the penal provisions. For example, the Court found that a blanket abortion prohibition is:
- “An act of gender-based violence and discrimination against women and pregnant people, since it annuls their dignity and autonomy, considering them as objects of regulation and not as authentic subjects of rights”;
- A perpetuator of a “gender stereotype that women and people with the capacity to bear children can only freely exercise their sexuality to procreate,” reinforcing “the gender role that imposes motherhood as a mandatory destiny for all”;
- An issue that “clearly constitute[s] obstacles to achieving gender equality.”
The abortion laws’ roots in sex stereotyping are discussed at greatest length in regard to Article 332, which reduced prison time for a woman convicted of having an abortion under three conditions: 1) that she not have a “bad reputation”; 2) that she hid her pregnancy; and 3) that her pregnancy was the result of an “illegitimate” union. The Court found the conditions “clearly discriminatory,” because they are “based on gender stereotypes that are harmful to women and pregnant people.”
First, having a “bad reputation” reflects the stereotype that women must be “good, modest, submissive, docile, fragile, emotional, dependent and complacent.” Second, the requirement to hide a pregnancy reflects social pressures on women to keep “inappropriate” pregnancies secret to avoid social scrutiny. Third, the requirement that pregnancy results from an “illegitimate” union reflects beliefs that pregnancy outside of marriage is “immoral, inappropriate, shameful or unacceptable,” requiring secrecy to avoid harm to the father’s image and honor. Citing recommendations from the Committee on the Elimination of Discrimination against Women (which are incorporated in Article 1 of the Mexican Constitution), the Court held that Article 332 was unconstitutional, violating the rights of women and people with the capacity to gestate to equality and non-discrimination.
Perhaps it should not surprise us that a law written in 1931 contains outdated perceptions of gender roles. But, in a contentious time for abortion rights worldwide, with trends of liberalization alongside notable outliers, legal reasoning matters. While any judicial decision by a country’s highest court is deeply tied to its own context, reproductive justice advocates around the world should be taking note.