Case 146/2007 and its cumulative 147/2007

Acción de Inconstitucionalidad 146/2007 y su acumulada 147/2007
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Please note that only portions of the original judgment have been translated into English. This summary is primarily written from those portions.

The Federal District legislature approved reforms to the Criminal Code of the Federal District in which it decriminalized and legalized abortion performed during the first 12 weeks of gestation. It also amended the Health Act for the Federal District for the same purpose.

The President of the National Human Rights Commission (NHRC) and the Attorney General of Mexico (PGR) brought a motion before the Supreme Court of Justice to request that the amendment was declared unconstitutional on a range of grounds including that the right to life of the unborn and the right to parenthood is violated.

Within the concepts of invalidity that justified the actions of the CNDH and the PGR were the sense of procreation as a free exercise of a couple, the rights of the father, and that the right to life must be protected even before birth (conception) and protect the health of the product.

The Court held that it was within the power of the legislature to define the protection of such right and the reforms that legalized abortion were not contrary to the Mexican Constitution. The Court noted that social context must be valued by the legislature and in this case, determine the behaviors that may or may not be sanctioned. It decided that the Assembly is the local power authority to assess and reform the penal code based on social reality, the protection of human rights and recognition of gender differences.

The Court held that the legislation fulfilled the Constitution’s right to life. The Mexican Constitution recognized a right to life and that “This right will be protected by the Law, in general, since the moment of conception.” The Court noted that the legislation by decriminalizing and legalizing abortion would avert the public health issue caused by covert abortions. The measures would in effect better safeguard women’s rights by combating maternal mortality, especially for poorer women that could only afford more dangerous means of having an abortion. Likewise, the measures are in line with the freedom to freely engage in sexual relations and their reproductive capabilities and rights of bodily integrity, self-determination, health and life.

The Court held that the legislation did not violate the principle of equality. The Court found the measure’s distinguished treatment between men and women to be reasonable and not discriminatory. The Court noted that carrying out an unwanted pregnancy produces profound consequences on women, even when aid is given. It is this asymmetrical burden placed on women that is the basis for the legislature to provide women the final say as to whether to have an abortion, regardless of a man’s interest in the matter.

The Court held that the newly defined crimes in the measure were sufficiently certain and accurate. The amendments to the penal code created and defined three new terms, self-induced abortion, consensual abortion and forced abortion. And, the former two are not criminal only during the first 12 weeks of gestation. The Court recognized the terms as sufficiently clear and protecting of life during gestation. Finally, the Court accepted as appropriate that the punishment for illegal abortion would be increased when conducted without the woman’s consent.

The Court held that there is no obligation to have a special scheme to address cases of minors who request an abortion, because what matters is not the biological age. To create regulations that restricts minors’ ability to terminate a pregnancy could result in violations of their rights.

The Court also noted that there is no difference between the concepts of health and public health.

“La justificación general de la medida resultado del ejercicio democrático llevado a cabo por la Asamblea que concluyó con la despenalización de una conducta, fue acabar con un problema de salud pública derivado de la práctica de abortos clandestinos, estimando que la despenalización del aborto permitirá que las mujeres interrumpan voluntariamente su embarazo en condiciones de higiene y seguridad; asimismo, garantizar un trato igualitario a las mujeres, en específico aquéllas de menores ingresos, así como reconocerles libertad en la determinación de la forma en la que quieren tener relaciones sexuales y su función reproductiva; reconocer que no debe existir la maternidad forzada y se debe permitir que la mujer pueda desarrollar su proyecto de vida en los términos que lo estime conveniente.” (Octavo parte, I)

“The general justification of a measure that resulted from a democratic exercise carried out by the Assembly and concluded with the decriminalization of a conduct, was averting a public health issue derived from the practice of covert abortions, considering the decriminalization of abortion would allow women to voluntarily terminate their pregnancy in sanitary and secure conditions. As well as, guaranteeing an equal treatment of women, in particular those of lower incomes, recognizing the freedom to freely engage in sexual relations and their reproductive capabilities, recognizing that forced maternity should not exist and that women should be allowed to develop their life plan in terms they deem appropriate.” (Eighth part, I)

“La continuación del embarazo no deseado tiene consecuencias distintivamente permanentes y profundas para la mujer, con independencia de que cuente con el apoyo de otras personas en su continuación y después en el cuidado y la educación del niño, y es esa afectación asimétrica al plan de vida lo que establece la base para el trato distinto que el legislador consideró al otorgarle a ella la decisión final acerca de si el embarazo debe o no ser interrumpido, y lo que no hace irrazonable negar al participante masculino la capacidad para tomar esta decisión.” (Octavo parte, II)

“Carrying out an unwanted pregnancy produces permanent and profound consequences on women, even when aid is given in the continuation of it, and then in the care and education of the child. It is this asymmetric disturbance to their life plan that is the basis for different treatment by which the legislator considers giving women the final decision about the termination of a pregnancy and what makes it reasonable to deny male participants the capacity to make the same decision.” (Eighth part, II)

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