This week Mexico’s Supreme Court debated the question of whether recent reforms to the constitutions of the states of Baja California and San Luis Potosí were constitutional. Both these constitutions, in common with 17 other states, have included a clause that guarantees the “right to life” from the moment of conception. As I have mentioned on this blog, these reforms have been enacted in response to the legalisation of abortion during the first trimester of gestation in Mexico’s Federal District in 2007 (see here, here and here). In 2008, the Supreme Court upheld the right of Mexico’s federal entities (the 32 states and the Federal District) to legislate on the issue of abortion and rejected a motion for this law to be declared unconstitutional, signalling that the Federal Constitution did not grant the right to life to unborn foetus or embryos.
Given this earlier ruling, prochoice groups had been hopeful that the Court would declare the recent reforms in Baja California and San Luis Potosí unconstitutional, thus paving the way for these same reforms to be challenged in the other states where this amendment had been adopted. This was not to be, however; the Court ruled 7-4 in favour of declaring the reforms unconstitutional, but the motion was dismissed because in votes on questions of constitutionality statute requires the minimum of 8 votes to pass.
What does this decision mean? In the first place, it seems to reiterate the 2008 ruling that Mexico’s federal entities have the faculty to decide on the question of abortion. This is the conclusion that most English reports have emphasised (see for example the Washington Post). However, the implications appear to be more wide-ranging than that. Upholding the idea that life can be legally defined as beginning at conception could also have other consequences; namely in the area of anti-contraceptive use and assisted pregnancy.  Some anti-contraceptive devices work by preventing a fertilised egg establishing itself in the womb (like the morning after pill or the coil) for example. IVF treatment usually involves the fertilisation of more eggs than are eventually implanted in the womb; the rest of are usually frozen. Will the constitutional amendments also trigger a revision of what is legal in these cases? Leading Mexican legal scholars think so.
Moreover, the precise wording of the Baja Californian amendment which read: “from the moment an individual is conceived, she/he falls under the protection of the law and is considered born for all legal effects” (“desde el momento en que un individuo es concebido, entra bajo la protección de la ley y se le reputa como nacido para todos los efectos legales correspondientes” ) suggests further issues; some apparently trivial, some more serious.
For example, does this recognition of the juridical existence of an embryo/foetus mean that it should be named and issued with identification documents? If the mother needs to travel abroad will she need to acquire a passport for the contents of her womb? More worryingly, the reform seems to give constitutional legitimacy to the already widespread practise in Mexico (see my posts here and here) of prosecuting a women for a suspected induced abortion for murder, rather than for illegally terminating their pregnancy. This allows them to be sentenced for custodial sentences of 20 plus years rather than the 4 or 5 stipulated in the penal codes for abortion. Finally, it appears inevitable that the upholding of the reforms will also mean the criminalising of nearly all women whose pregnancies end in unexplained circumstances, since miscarriages and still-births might be liable to be considered suspected terminations unless it can be proved otherwise. This is concerning as a high number of pregnancy ends in miscarriage in the first trimester of gestation. It is estimated for example that up to half of all fertilized eggs die and are aborted spontaneously, usually before the 6th week of pregnancy. After that, the miscarriage rate is calculated at between 15 and 20%. Moreover 80% of miscarriages occur before 12 weeks of pregnancy, many with no obvious cause . Can Mexico’s already over-stretched and inefficient justice system deal with this number of investigations? The criminalisation of miscarriage and still-birth is also likely to prevent many women seeking medical attention, putting their lives at risk and increasing Mexico’s already high maternal mortality rates (see my post here).
Abortion is a contentious subject in Mexico, as is in most Catholic countries there is strong antiabortion feeling amongst the faithful, encouraged by the Church. In the wake of the Supreme Court ruling, the Archbishop of Mexcali (in Baja California) claimed that the Pope had been in communication with one or more of the Supreme Court judges in attempt to influence their vote. This accusation was denied by the Vatican . The political party currently in control of Mexico’s Presidency, the National Action Party (Partido de Acción Nacional or PAN), is resolutely opposed to abortion; and the party with a majority in Congress –the Institutional Revolutionary Party (Partido de la Revolución Institucional or PRI) – has sponsored many of the states’ constitutional amendments on the subject of the right to life. Only the minority Democratic Revolution Party (Partido de la Revolución Demcrática or PRD) is prochoice, as evidenced by the legislation in the Federal District, one of the very few entities controlled by this party.
The situation then looks grim in the short-term for prochoice activists in Mexico. However, it must be borne in mind that the Supreme Court did in fact produce a majority in favour of striking down the reforms; it just wasn’t a big enough majority. It can only be hoped that at some future date, the composition of the Court will be more favourable to the protection of women’s rights.