A Tale of Two Courts: U.S. and Mexican Judiciaries Face Abortion Issue

Almost a week apart, the highest court in two neighboring countries issued opinions or resolutions regarding the issue of abortion with opposite effects.  

On the night of September 1, the Supreme Court of the United States declined to block S.B. 8, the “Texas Heartbeat Act.” The controversy surrounding this law concerned two issues: (1) its expansion of abortion prohibitions beyond the Court’s precedent, and (2) its enforcement via private citizens. S.B. 8 prohibits physicians from performing abortions after the detection of a heartbeat, which can happen as soon as the sixth week of the pregnancy. This is why it has been reported as prohibiting abortions after six weeks. Regarding its enforcement, Section 171.207 of the law specifically prohibits enforcement “by this state, a political subdivision, a district or county attorney, or an executive or administrative, officer or employee of this state or a political subdivision.” Its enforcement outsourced to private citizens. Section 171.208 allows “any person to bring a civil lawsuit against any person who:  

(1) performs or induces an abortion in violation of this subchapter; 

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or 

(3) intends to engage in the conduct described by Subdivision (1) or (2). 

This is a scheme viewed as an attempt by the state of Texas to evade judicial review and liability. 

To temporarily halt the law while the litigation was ongoing, the pro-choice applicants/plaintiffs asked the Court to block the respondents/defendants from enforcing it once it went into effect. The Court, in a one-page and half order, declined to do so because it was “unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants.” The Court explained that “[t]he State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly[;]. . . the sole private-citizen respondent before [the Court] . . . filed an affidavit stating that he has no present intention to enforce the law[; and it is unclear] whether, under existing precedent, [the] Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.” In other words, the applicants have not suffered the necessary injury and the Court is not clear whether it can provide a remedy. 

This lack of clarity is one of the reasons the dissenters were in favor of granting the requested preliminary injunction. Chief Justice Roberts emphasized that the Court was essentially asked to resolve these new legal issues in the “course of two days, without the benefit of consideration by the District Court or Court of Appeals. . . [,]without ordinary merits briefing[,] and without oral argument.” Justice Breyer agreed with the Chief Justice in that the “Court should not permit the law to take effect without assuring the applicants (and the respondents) an opportunity first and fully to make (or to refute) these and other arguments supporting the request for an injunction.” Similarly, Justice Kagan found that the “majority. . .acted without any guidance from the Court of Appeals. . . [and] reviewed only the most cursory party submissions, and then only hastily.” Because of this, in Justice Sotomayor’s view, “[a]t a minimum, th[e] Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course” However, this view only garnered four votes.

Right across the Rio Grande, on September 7, the Supreme Court of Justice of Mexico (“SCJN”) unanimously declared Coahuila’s abortion law unconstitutional. Article 196 of Coahuila’s criminal code imposed a sentence of one to three years of prison "to the woman who voluntarily performs her abortion or to the person who causes her to have an abortion with consent." In declaring the law unconstitutional, the approved resolution by SCJN explained that: 

"Reproductive freedom, in its specific aspect of the right to decide, implies that it is not the responsibility of the State to know or evaluate the reasons for continuing or interrupting her pregnancy, since they belong to the sphere of intimacy of the woman, and that they may be of the more diverse nature, which includes medical (physical and psychological), economic, family, social reasons, among others ." 

In announcing his support for the resolution, the President of the SCJN stated that “[t]oday is a historic day for the rights of all Mexican women. . . . It is a watershed [moment] in the history of the rights of all women, especially the most vulnerable.” Similarly, Minister Norma Pina declared that “[t]he State must not only absolutely abstain from criminalizing abortion. . . but it must also guarantee minimum conditions for this to be possible.” Minster Margarita Rios-Farjat explained that “the grip of criminal law to punish those who voluntarily interrupt their pregnancy is not. . .  a power available to the legislator, since human rights are at stake.”  

This resolution is specific to the state of Coahuila and only invalidates the mentioned section of the state penal code. However, it sets a binding precedent for all the judges in the country. The judges are bound to decide similar cases in a similar manner. In its press release, the SCJN was clear that “[f]rom now on, when resolving future cases, [judges] must consider that the criminal laws of the states that absolutely criminalize abortion are unconstitutional.”

Two days after this historic vote, on September 9, the SCJN voted to hold as unconstitutional a portion of Sinaloa’s constitution which sought to define the beginning of human life. In the pertinent part, Article 4 of the Political Constitution of the State of Sinaloa established that an individual in subject to the protection of the applicable laws “from the moment [he or she] is conceived . . . [and] until [his or her] death.”

The SCJN held that a state cannot define the origin of human life or the concept of “person.” This matter, the SCJN explained, is exclusive of the federal constitution. Moreover, the SCJN considered that this attempt to grant the status of “person” to a fetus or embryo was an unconstitutional attempt to restrict a woman’s right to reproductive autonomy.