Along the same lines, Diana Gamboa Aguirre, who holds a master’s degree in constitutional law, told ACI Prensa that the First Chamber of the SCJN has ruled that “any public health institution is obliged to perform an abortion if it is GIRE that requests it.”
“The court lacks the faculty to establish public policies, and our constitutional order and international conventions [ratified by Mexico] recognize the right to conscientious objection, so health personnel cannot be forced to end the life of any unborn child against their will and conscience,” Gamboa noted.
GIRE and a ‘strategic litigation’
The Mexican jurist points out that in this case “it’s important to be clear that we are dealing with strategic litigation,” a type of legal action taken seeking to bring about broad social or political change, which can even lead to changes in the law that affect an entire country.
“To that extent, initially the amparo will have effects [only] on the plaintiff civil association which, by the way, has been one of the main beneficiaries of the abortion industry in our country,” she noted.
“Within the $18.8 million that the International Planned Parenthood Federation injected into Mexico at least from 2008 to 2016, GIRE was one of the main beneficiaries, along with other NGOs [nongovernmental organizations] that promote the vision of abortion as a supposed right to the benefit of the abortion industry,” she pointed out.
Effects on Mexican legislation not yet known
A question that has arisen as a result of the Supreme Court’s ruling is whether the amparo filed by the civil association will have an effect on the Federal Penal Code and consequently on state legislatures, which would set the precedent for decriminalizing abortion on the national level.
The confusion has arisen because the Supreme Court of Justice issued a statement instructing the Federal Congress to “repeal the regulations contained in the Federal Penal Code that criminalize voluntary abortion (self-induced or consent given to the practitioner) before the ordinary legislative sessions end during which the ruling on this matter was notified.”
According to Vázquez-Gómez Bisogno, “the draft ruling says absolutely nothing” about the reform of the Federal Penal Code and the intervention of the Congress of the Union, “so we will have to wait for the final version of the ruling to be published to know the effects.” This could even take months.
In turn, Gamboa pointed out that “there is no clarity” with the court decision and described it as “an arbitrary imposition of the court, which technically lacks support in that law that enables it to act in that sense.”
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“Although they could initiate proceedings to not implement the ruling, Congress has means to defend itself in the absence of any constitutional or legal faculties that would enable the court to order it to repeal a law due to an amparo,” she maintained.
Is there a ‘right’ to abortion?
The draft ruling that was approved by the Supreme Court states that the absolute prohibition of abortion violates “the right to free development of personality, the right to health, equality, and nondiscrimination, and reproductive autonomy.”
However, both lawyers consulted by ACI Prensa agree that the Supreme Court would be establishing the “right to abortion” overriding the Political Constitution of Mexico.
Gamboa pointed out that the judges of the SCJN established “an alleged ‘right’ of women to terminate our unborn children. Under this alleged right, it is stated that the censure in the criminal code for said conduct is supposedly unconstitutional. However, the judicial construction described is at odds with the specific protection that, both at the constitutional level and in international treaties, the conceived child developing in the womb has in the Mexican legal order.”
Vázquez-Gómez warns that although in “its paraphrasing the Supreme Court does note that there would be a right to abortion,” in the Constitution of Mexico “there is no right to abortion, it’s not in the text.”