Author: Kanak Mishra | O. P. Jindal Global University
On 29th July, the Supreme Court (S.C.) of Mexico, in a 4:1 decision, rejected a State Government’s bid to decriminalize abortion. The Court heard the case to decide the validity of an injunction order passed by a judge in Veracruz. The judge ordered the state government to remove articles 149, 150 and 154 of the state Penal Code that criminalize abortion in the first 12 weeks of pregnancy, criminalize abortions for health reasons and prescribe a time limit on abortions in cases of rape.
It is worth noting that currently only two states- Mexico City and Oaxaca out of 32, have decriminalized abortion. There is no law guaranteeing people abortion even in cases of rape. However, the High Courts of Mexico have allowed abortions in rape cases only as a norm.
History of Abortion Rights in Mexico
Abortion has been a crime in Mexico since 1931. Despite the normative rulings from the High Courts of some states, access to safe abortion even in rape cases was a huge problem for people. The lack of legal indications of a concrete right to abortion in rape cases has, over time led to ignorance and sometimes blatant disregard of the existing institutional mechanisms.
Abortion in cases of rape was made permissible under the ‘Ley General de Víctimas’ or the Federal Law of Victims through two significant decisions concerning the rape victims “Marimar” and “Fernanda.” It is surprising that the Court cited the Articles of the Constitution that abide by the International Law Treaties in upholding the right to abortion, but only for rape victims.
International Law on Reproductive Rights
The following United Nations Treaties in addition to some others, have designated Reproductive Rights as Human Rights.
The Human Rights Committee (HRC) mandates the implementation of the International Covenant on Civil and Political Rights (ICCPR). General Comment No. 28 on The equality of rights between men and women, states that women have the right to privacy in deciding their sexual rights and protections. Paragraph 20 of the comment states explicitly that women’s families or the State cannot interfere with their reproductive rights. It also states that families cannot impose conditions such as obtaining their permission for undergoing an abortion and nor can the State mandate the public or private doctors to keep a tab on women undergoing abortions. States have a positive obligation to ensure access to reproductive rights for women.
The denial of abortion might also, amount to the violation of Article 6 (Right to Life) and Article 7 (Right against torture and inhuman treatment) where there exists a grave threat to the person’s life.
In LMR v. Argentina, the United Nations HRC held that the abortion decision should remain between the woman/girl and her doctor only and that any involvement from the Court or third parties would amount to interference.
The Committee on Economic, Social and Cultural Rights mandates the implementation of International Covenant on Economic, Social and Cultural Rights (ICESCR).
According to General Comment No. 14, i.e. The right to the highest attainable standard of health, the right to health is to be understood as imbibing sexual and reproductive freedoms. It mandates the states to ensure that people have access to the highest attainable standard of health without any interference. Paragraph 9 and 12 of the General Comment specifically mention that the states have a positive obligation to provide people with adequate healthcare facilities and conditions essential to maintain their health. The states must ensure not just physical access to reproductive services, but also ensure economic qualitative and informational access too.
General Recommendation No. 21 on Equality in marriage and family relations in Paragraphs 21-23 warns against the unintended pregnancies and other coercive practices against women. These paragraphs emphasize the physical and mental toll of pregnancies on women. Moreover, a 2016 U.N. report on Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment called for the decriminalization of abortion by classifying denial of abortion as torture.
The Commission for Elimination of All Forms of Discrimination Against Women (CEDAW) seeks to address gender-based discrimination by recognizing women’s reproductive rights at the International level by adopting a negative rights approach. Negative Rights prohibit the state from interfering in the freedom and privacy of women’s reproductive choices, as opposed to positive rights that mandate the state to take actions for ensuring access to reproductive rights.
Dodging abortion rights?
Feminist groups and Human Rights activists have time and again protested against the criminalization of abortion in the Mexican courts for the failure of implementing International Human Rights treaties or enforcing them selectively.
The SC dodged the issue of abortion rights to steer clear of ‘judicial activism.’ However, there is a considerable difference between judicial activism and judicial governance. While in the former the judiciary fills a legislative gap by participating or taking part in the functioning of the government, the latter involves judges managing the courts or other judges to perform better in terms of the Court’s accountability. Thus, S.C. could have deliberated on abortion rights.
Problem at the international level and the way forward
With the concerted efforts of various human rights bodies, access to abortion through improved healthcare services (reproductive health framework) has been eased. However, despite the ease of accessing abortion, the approach of legally recognizing women’s decisional and bodily autonomy (reproductive rights framework) needs a substantial amount of work. There is indeed an urgent need to combine both, the reproductive health framework and the reproductive rights framework to have a holistic ‘Reproductive Health Rights’ approach that would represent both the health and the decisional aspect of reproductive rights.