This Week’s Pro-life Victories in Mexico

Posted on | May 3, 2013 by Piero A. Tozzi, J.D. |

The Mexican Supreme Court yesterday upheld two state constitutional amendments from Oaxaca and Guanajuato that had protected life from “conception,” rejecting an attempt by two pro-abortion justices to reopen an issue that many had hoped was closed by a 2011 Supreme Court decision.  Earlier in the week the Supreme Court also struck down another amendment but on narrow, procedural grounds, leaving the door open for the state of Queretaro to correct the defect and again pass its amendment protecting unborn life.

Pro-lifers were worried when the two stalwart justices of the Mexican Supreme Court stepped down last year, fearing that the hard-won battle to preserve state personhood amendments might one day be undone.

Last week, their concerns were heightened when two pro-abortion justices of the Supreme Court, Arturo Zaldivar and Fernando Franco González Salas, unexpectedly pushed not only to reopen the issue with regard to the amendments of three states, Queretaro, Guanajuato, and Oaxaca, but also sought to use judicial review as a vehicle to impose abortion upon the entire nation.  Both justices put forward proposals that, if adopted, would have amounted to the Roe v. Wade of Mexico.  Pro-lifers presumed that Zaldivar and Franco knew how to count votes, and that they were confident that they would win, especially when only three justices went on record as saying that there was no basis for the court to consider these suits.

The plan of Zaldivar and Franco ran into its first hurdle when the Court voted on the Queretaro amendment.  Though the Court ruled 8-3 to strike it down, it did so on narrow procedural grounds, as the State had not received approval from the requisite number of municipalities before it adopted the amendment, thereby rebuffing Zaldivar and Franco.  Several justices commented that the State was free to revisit the issue and follow the proper procedure in passing the amendment.

Concerning Oaxaca and Guanajuato, resistance to the pro-abortion maneuver unexpectedly came from two justices who had previously voted in favor of abortion, Sergio Valls Hernandez and Jose Ramon Cossio Diaz.  Though they affirmed support for “reproductive rights” in the abstract, they challenged the assertion that municipalities could challenge an amendment made at the State level, given that the power of municipalities derive from the State, which under Mexico’s federalist constitutional structure is a sovereign entity.  They also noted that the procedural vehicle by which the cases were brought to the court was as a “constitutional controversy, not an “action for a declaration of unconstitutionality,” and hence any gambit to use the present cases to impose abortion upon the entire nation was beyond the authority of the Court.

Though Valls Hernandez and one other justice refrained from voting in the final 5-4 tally, Cossio joined federalist stalwarts Margarita Beatriz Luna Ramos and Jorge Mario Pardo Rebolledo in upholding the amendments, as did newcomers Alberto Perez Dayan and Alfredo Gutierrez Ortiz Mena.  Two judges, including the chief justice, voted with Zaldivar and Franco.

In sum, a majority of justices ruled as judges should, upholding the law and respecting the principles of legislative deference and federalism.  The activists were thwarted in their effort to impose their will on the entire nation.

Alliance Defending Freedom submitted an amicus brief in favor of the state amendments.

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Turtle Bay and Beyond is a blog covering international law, policy and institutions. Our experts - at the UN, European Institutions, and elsewhere - explore an authentic understanding of international law, sovereignty, and the dignity of the human person. We expose those who would seek to impose a radical social vision that is contrary to these principles.

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