“The Court did not decriminalize abortion”: the keys to understanding the historic judgment of the SCJN

No woman will go to jail for having an abortion. This is what the Supreme Court of Justice of Mexico (SCJN) ruled in a landmark decision. In theory, a law in the northern state of Coahuila that penalizes this practice has been specifically declared unconstitutional. But it applies to the whole country because the ministers have decreed that judges in other states must act according to the same criteria. Termination of pregnancy has not been decriminalized, for this there is a long way to go. Although this is a key step towards this goal.

Unanimously, this September 7, the 10 ministers of the plenary session of the Court invalidated article 196 of the Penal Code of Coahuilense that inflicted from one to three years of prison “to the woman who performs her abortion voluntarily or to the person who causes her to have an abortion with her consent”.

But, “what the Court decided”, he explained to Infobae Rebeca Loera, public policy advocacy coordinator at GIRE, an organization that works for reproductive rights, “can have effects in terms of the judiciary, but not Congress. It is important to clarify that the Court did not decriminalize abortionThis is not the role of the Court ”.

And it is that the decriminalization of abortion should change laws, with reforms, a task that corresponds to federal and local lawmakers. This is why by law, at least in theory, abortion continues to be penalized. What changes now, the judiciary ––Which one corresponds to the Court–– is that when a woman is tried accused of abortion, the case will simply have to be dismissed., because the procedure will be unconstitutional.

While having reached a majority greater than eight votes, the magistrate María Emilia Molina de la Puente explained to this media, “This precedent has the character of binding jurisprudence for all judges in the country.because it establishes a national standard in these rights ”.

The decision caused a stir since it is completely new in Mexico. But that does not mean that from today abortion is legal across the country or that tomorrow a woman will be able to go to a hospital to have an abortion, except in places which are exceptions where it is ‘is legal, explains Rebeca Loera, pointing to a vital pending question: women will not go to jail for having an abortion, but they will not yet be guaranteed to do so safely.

“This is a step of the utmost importance but it is not the total and complete decriminalization that we are seeking. There is still a need to guarantee access to services, ”said the lawyer for GIRE. Although yes, “at least now we can be sure in Mexico that if we have an abortion and our case goes to court, we won’t go to jail.” And if a judge dares to ignore what the court has said, he will act against the Constitution. “

Currently in Mexico, there are at least 200 women imprisoned for having abortions, some data is inaccurate due to bias in the public information in this regard. For them, the court’s decision will not represent any change. The ministers made it clear that their decision began to be valid from this Tuesday. That is to say, as Rebeca Loera explains, will not have retroactive effect.

What’s the next step now?

Criminalization, and therefore its decriminalization, is a local and legislative competence. Currently, it is only legal, until the first 12 weeks of gestation, in four of the country’s 32 states: Mexico, Oaxaca, Hidalgo and Veracruz. So what follows, says Loera, “is to bring this message to all local Congresses that have yet to reform their Penal Codes.”

While for judge Molina de la Puente “Legal change is only a step that must be accompanied by factual and cultural change”, but we still have to know the fine print under which this decision of the Court is going to be governed. For example, to what extent of a pregnancy it will be unconstitutional to criminalize abortion.

“This is a huge and very important step that must be followed by many others,” he says, listing three basic points:

-The development of a legal framework which not only does not criminalize, but also guarantees the access to safe abortion

-The dissemination of implications of this type of resolutions, standards for the protection and recognition of each of the human rights of women and pregnant persons

–Education sexual and reproductive with a human rights approach and a gender perspective

Meanwhile, what was passed in Mexico, according to the two experts, is a landmark decision in favor of human and reproductive rights.

“The court was up to the task, but it is the accomplishment of all», Declared the spokesperson of IWRM. While the magistrate stressed that absolute respect for human rights is fundamental in a democratic state, “and This historic decision allows the construction of a more just society”.

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