The Supreme Court and Debunking Abortion Myths

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When the SCJN declared the crime of abortion unconstitutional in Coahuila, abortion was decriminalized nationwide: FALSE

The Supreme Court’s ruling regarding the Criminal Code of Coahuila did not result in amendments to the criminal codes of other federal entities. An Action of Unconstitutionality (AU) is a legal proceeding through which an authority claims that another authority has committed a human rights violation; it is limited to challenging a specific law and therefore has no effect on norms that were not the subject of the dispute. Nevertheless, the ruling did constitute a nationwide precedent establishing that no criminal convictions should be issued for the crime of abortion when it is carried out solely at the request of the woman or pregnant person during an early stage of pregnancy.

On October 27, 2017, the new Criminal Code of Coahuila was published. The then-Office of the Attorney General of the Republic (PGR) filed an action of unconstitutionality, arguing that the general prohibition of abortion included in that criminal code violated reproductive autonomy.

In resolving the case in 2021, the SCJN determined that human rights are recognized from the moment a person is born alive, not before, since neither the Constitution nor international treaties protect the right to life from conception. However, the Court also affirmed that there is an obligation of progressive realization to protect the process of gestation (i.e., an obligation that increases as the pregnancy progresses) and that such protection can only be guaranteed by protecting the rights of women and other pregnant people. Thus, the Court concluded that when criminal law affects other rights, it is not an appropriate means of protecting the process of gestation. This was the case with Article 196 of the Criminal Code of Coahuila, which imposed sanctions on women who voluntarily terminated a pregnancy regardless of the stage of gestation, thereby completely nullifying their rights. The prohibition of abortion without exception entails that, once pregnant, a person is necessarily forced to endure and carry the gestational process to term.

Consequently, the SCJN declared invalid Article 196 of the Criminal Code of Coahuila, which imposed prison sentences on those who had an abortion as well as on those who performed abortions or assisted in them. It also invalidated the section of Article 198 that penalized health care personnel who performed abortions or assisted in them, and, in Article 199, the twelve- week gestational limit for abortion in cases where the pregnancy resulted from rape.

As of the entry into force of this ruling, any investigation initiated at the state level against women or people with the capacity to gestate for the crime of abortion, as well as those who had assisted someone in obtaining an abortion, was required to be closed. Furthermore, anyone who had been sentenced or imprisoned for this crime had the right to have their case reviewed in order to be released. From this point forward, no one in the state could be investigated or convicted for voluntarily having an abortion or for assisting another person in obtaining one.

On March 11, 2021, the constitutional reform of the federal judiciary was published. Among other aspects, this reform established the transition to a system of precedents. Under this system, a single case decided by the SCJN with a qualified majority is sufficient for that decision to become binding across the entire judicial system and to be used to rule on future cases. Therefore, the nationwide effect of the ruling in the Coahuila case is that no judge may issue a criminal conviction for the crime of abortion when it is carried out solely at the request of the woman or pregnant person during an early stage of pregnancy.

However, this ruling did not decriminalize abortion in all federal entities. Therefore, after the Court’s decision, Baja California, Colima, Sinaloa, Guerrero, Baja California Sur, and Quintana Roo had to initiate a legislative process to achieve the partial decriminalization of abortion.

This ruling is a landmark for two reasons: firstly because it was the first in which the Supreme Court ruled that the prohibition of abortion without exception violated human rights, and secondly because the Plenary noted that the recognition of human rights encompasses both women and people with the capacity to gestate.[6] In other words, this ruling also recognizes people whose gender identities differ from the traditional concept of womanhood but who possess the capacity to gestate (for example, trans men, non-binary people, and other gender- diverse individuals).

In conclusion, the lack of access to legal and safe abortion entails violations of the human rights of women and other people with the capacity to gestate, including the rights to:

Access to abortion is a public health issue. Recognizing and guaranteeing it as a health service and removing it from criminal law are essential so that women and other people with the capacity to gestate can make decisions about their reproduction freely, safely, and autonomously.

By contrast, when abortion is criminalized, in addition to the strong message the state sends regarding reproductive decisions—which should fall within the private sphere—it also has concrete effects on women and other people with the capacity to gestate who come from contexts of violence, economic hardship, and limited access to reproductive information. Moreover, the continued criminalization of abortion constitutes a structural barrier within the health system. This not only limits access to abortion services but also obstructs the exercise of the right to health.

As long as abortion services are not available upon request and at any stage of pregnancy, women and other people with the capacity to gestate will continue to make decisions about their reproduction, but they will do so by resorting to clandestine abortion services and, in some cases, to unsafe and unhygienic practices. It is therefore urgent that state congresses take a stand in favor of the right to health and the autonomy of women and other people with the capacity to gestate through the total decriminalization of abortion, and that health authorities guarantee access to abortion services under conditions of freedom.

By ending the stigma surrounding induced abortion, it is also possible to ensure that this medical procedure receives the same guarantees as any other health service.

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