This Tuesday, September 7, the Supreme Court of Justice of the Nation in Mexico set a historical precedent for the sexual and reproductive rights of women and other people with the capacity to carry children, by unanimously ruling by 10 votes that it is unconstitutional to criminalize abortion. absolutely and to pronounce for the first time in favor of guaranteeing the right to decide.
The recognition of the right of women to decide freely and voluntarily about our body has been a bumpy road, with advances, setbacks, potholes and ditches.
It has faced sustained resistance in moral prejudices and political calculations that have turned it into a bargaining chip.
For this reason, this resolution is so transcendent, since it recognizes that current criminal legislation on abortion violates the human rights of women and implies discrimination and violence against them.
By establishing the criterion of guarantee to the right to decide of women and other people with the capacity to bear child, the Mexican Court endorses what feminists have demanded in the streets, classrooms and courts, the right to freely decide about our bodies and Our fates.
The project presented by Minister Luis María Aguilar establishes that the “right to decide serves as an instrument to protect the dignity of women and to exercise the free development of the personality, in a way that allows them, in relation to the possibility of being a mother , be who you want to be ”, and affirms that the right to decide is built on gender equality, to underline that motherhood is not destiny, but rather an action that, to be fully exercised, requires being the product of a voluntary decision and eliminating factual or legal assumptions based on a social hierarchy of supposed biological order, to end a vision of submission, or domination.
The right to decide, as recognized by the Court, contemplates the obligation of the Mexican State to guarantee us: sexual education to decide; access to counseling and counseling in family planning and birth control methods, so as not to abort; and legal abortion in order not to die so that women and other people with the capacity to carry a child who so decide can terminate their pregnancy in public health institutions in an accessible, confidential, safe, expeditious, and non-discriminatory manner. It recognizes the woman as the sole holder of the right to decide the continuation or interruption of her pregnancy and that the State is the one who must guarantee access to all services for this to be possible.
The Supreme Court reaches this resolution after at least 20 years of activism and litigation, which added voices and wills so that the underlying issue was finally discussed. On previous occasions, the Court had not entered into the substantive discussion based on the criterion of freedom of legislative configuration of local congresses, which led to the ratification of the so-called Robles Law in 2002, which expanded the non-punishable causes of abortion; and so that in 2008 it recognized the validity and constitutionality of the decriminalization of abortion in the Mexican capital. But with this criterion, reforms of local congresses had also been validated that led to the establishment of the right to life from conception.
Today, the SCJN establishes that "the legislative 'freedom of configuration' of the states does not imply the absolute prohibition of abortion, since women's human rights are at stake and must be weighed."
Furthermore, “since a majority exceeding eight votes has been reached, the Court's reasons are binding on each and every judge in Mexico;
both federal and local.
From now on, when resolving future cases, they must consider that the criminal laws of the federative entities that criminalize abortion in an absolute manner are unconstitutional, ”with which in fact no judge may judge a woman for having an abortion and freely decide on her body;
which will allow us to continue advancing towards substantive equality, where sexual difference in the reproductive field does not imply discrimination or gender violence.
Martha Tagle
is a feminist politician and consultant. She was a deputy of the Citizen Movement in the LXIV legislature.