In twin 7-4 decisions that fell one vote shy of the supermajority necessary to strike down a law as unconstitutional, the Mexican Supreme Court failed to topple amendments that had been enacted in wake of an earlier ruling that had appeared to uphold the principle of legislative deference with respect to abortion regulation. That 2008 decision had allowed a law liberalizing abortion in the first trimester passed by Mexico City’s local assembly to stand while declining to impose abortion on the rest of the nation.
Following that earlier 8-3 ruling in which a majority of the concurring justices appeared to leave the door open to action on the state level, legislatures in 17 of Mexico’s 32 states passed “personhood” amendments protecting life from “conception” or “fertilization,” thus joining Chihuahua, which had passed Mexico’s first personhood amendment in 1994. Such amendments appeared facially consistent with Mexico’s federalist constitution, which provides that powers not expressly granted to the federal government are reserved to the States. Abortion advocates, however, challenged the compatibility of the state amendments with federal constitutional “rights” that previously had not been interpreted to include abortion.
The suits lingered untouched for several years before the Court last month began debating the constitutionality of two state amendments, those of Baja California Norte and San Luis Potosí.
A draft opinion by Justice Fernando Franco to guide the debate recommended striking down the amendments, as the federal Constitution “does not establish that the unborn are persons or individuals, only recognizing them as ‘juridically protected goods.’” In one particularly revealing passage, he stated that the Baja provision violated “rights to dignity, reproduction and health of women” found in the Constitution and international treaties, and that “considering the product of fertilization an individual and conferring a supreme and invincible right to life, without considering that such protection cannot be absolute,” violated rights Franco denominated as “fundamental,” such as “the right to have the number of children one desires (and for that, recourse to methods of assisted reproduction) or the right not to have them (and for that, employing methods of contraceptives).”
Critics contend that such an inversion of rights ultimately violates human dignity, which must be premised on the right to life upon which all other rights depend, and which cannot be made subject to the “desires” of others.
Franco further opened himself up to charges of inconsistency and results-oriented judicial overreach, given that his 2008 opinion rested upon deference to a legislative body, albeit one that had liberalized a law on abortion.
In contrast, a model of consistency was Margarita Luna Ramos, whose opinion last week underscored her previous legislative deference and respect for federalism – a position similar to those in the United States such as Robert Bork who argue that Roe v. Wade was wrongly decided and the issue would have been better left to individual States. Also predictably consistent were Sergio Aguirre Anguiano and Guillermo Ortiz Mayagoitia, who both held that the unborn share in the federal constitution’s broad protection of the right to life, and, on the other side, Sergio Valls Hernandez, who had advocated imposing abortion upon all of Mexico in the previous case.
The decisive vote was provided by the newest judge, Jorge Pardo Rebolledo, who grounded his decision in the Constitution’s federalist structure. Pardo is one of three new judges nominated to the Court since the 2008 decision by conservative president Felipe Calderon of the National Action Party (PAN). Five of the pro-abortion votes came from PAN-nominated judges.
While applauding the decision, Mexican pro-lifers are concerned that the respite may be temporary, as pro-life stalwarts Aguirre and Ortiz are nearing the end of their terms. Intriguingly, both were appointed by Ernesto Zedillo, the last president from Mexico’s Institutional Revolutionary Party (PRI), the anti-clerical, secularist movement that dominated Mexican politics for most of the twentieth century.
Adding to the uncertainty are upcoming presidential elections. With the vote of the hard Left likely to be split among two candidates, some speculate that a candidate from PRI – most likely the flamboyant former governor of the State that surrounds the capital district, Enrique Peña Nieto – would be most likely to appoint pro-life replacements based on political calculation, as this could split PAN’s Catholic core, which is already disappointed in the performance of PAN-nominated judges.
The International Organization Law Group, an affiliate of C-FAM (publisher of the Friday Fax), filed an amicus brief in the Baja case.