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The Tex-Mex Abortion Border

By Vaidehi Mehta, Esq. on September 24, 2021 3:19 PM

At the same time that the United States seems to have dialed reproductive rights back a notch, Mexico may be progressing in the opposite direction. A few weeks ago, the U.S. Supreme Court made a preliminary ruling in Whole Woman's Health v. Jackson, a dispute concerning Texas passing the most restrictive abortion law to date. Denying the injunction requested by pro-abortion plaintiffs, the Court allowed Texas's law to take effect on September 1st. Days later, Mexico's equivalent court declared unconstitutional a law aiming to impose criminal penalties for women who have abortions. The neighboring countries' divergent rulings may have significant consequences beyond borders—at least across The Border.

The SCOTUS Ruling: A Roe Loophole?

In recent years, the legal debate over abortion in America has been ramping up at the national level, as different states and courts have diverged on just exactly what reproductive rights women have under the U.S. Constitution. Earlier this month, in Jackson, SCOTUS was asked to consider the constitutionality of a Texas's Senate Bill 8, which would ban abortions after a fetal heartbeat can be heard. This timeline would effectively ban most abortions after six weeks of pregnancy—sooner than many women realize they're pregnant.

The Texas statute pushes the envelope further than other states have in the past by allowing private citizens to sue abortion providers for violations—and conversely, does not allow for government enforcement at all ("neither [Texas] nor its executive employees possess the authority to enforce the Texas law either directly or indirectly"). The law also does not make exceptions for rape or incest, though there are (very narrow) exceptions in the case of severe health risks to the mother or fetus.

The Supreme Court's decision not to grant injunctive relief is groundbreaking. Other states have attempted similar six-week bans, but each was struck down as a violation of Roe v. Wade or subsequent caselaw such as Planned Parenthood v. CaseyRoe was itself a Texas-based case—but one in which SCOTUS came out in favor of women's reproductive rights, holding that women have a "fundamental right" to choose whether or not to have abortions without "excessive government restriction."

Texas was perhaps uniquely situated to win legal challenges where others have lost because Senate Bill 8 appears to have been intentionally drafted to dodge lawsuits that would strike it down under Roe and its descendants. The statute's novel component of private citizen enforcement seems to have been a key component of SCOTUS's consideration in denying the injunction. There was only one private citizen involved in the legal battle, who filed an affidavit stating that he had no present intention of enforcing the law. That, combined with the fact that it was unclear whether the named defendants in the suit (which included Texas state court judge Austin Jackson and the Texas Attorney General, Ken Paxton) even had the ability to enforce the law, was enough for the Court to decide that the plaintiffs had not met their burden of showing that they would be "irreparably injured" if denied an injunction.

The plaintiffs filed a petition yesterday in response to what they saw as a successful, if surprising, leap through a loophole by abortion opponents. In it, they essentially ask SCOTUS to consider the constitutionality of the apparent loophole: "whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions." Interestingly, they make an analogy to classic civil rights cases, arguing that if a state in the wake of Brown v. Board of Education had enacted a similar law authorizing private citizens to sue anyone trying to integrate schools, SCOTUS would have certainly stopped it.

The petition, which asks for expedited review in addition to certiorari, may not be taken up by SCOTUS considering the Mississippi case of Dobbs v. Jackson Women's Health Organization is also on their docket. The Mississippi case would potentially allow the Court to dodge some jurisdictional hurdles that the Texas case presents. In any event, American abortion advocates are far from throwing in the towel.

The Mexico Ruling: A Unanimous Swing in the Other Direction

Meanwhile, in Mexico, the country saw its own groundbreaking decision from its highest court, one which seems to be an unprecedented judicial thumb on the scale in favor of abortion rights. Mexico's federal system is not dissimilar to that of the U.S., with the country comprised of its own "united states." Their judicial system also parallels the American one: the federal trial courts, appellate courts, and the Supreme Court of Justice of the Nation (SCJN) rule on cases that arise out of Mexican state laws and the Mexican federal constitution.

A unanimous SCJN held unconstitutional a law enacted in the state of Coahuila that penalized women who got abortions with fines and up to three years imprisonment. Although this decision does not legalize abortions, as other laws restricting abortion across Mexican states are still pending, it sets a substantial precedent for the future of reproductive rights in the country.

Both Rulings Unpopular

Ironically, the slight majority of the populace in each country appear to oppose their respective court decisions.

A poll by the Associated Press found that 61% of Americans today are in favor of the right to an abortion in the first trimester, with 49% of respondents saying that they believed anyone should be able to get an abortion for any reason.

In Mexico, on the other hand, a poll by the national newspaper El Financiero shows that 53% of Mexicans oppose the ruling that allows women a right to an abortion. Mexicans in favor of the ruling and those against it engaged in peaceful protests the day the decision came down. Even those who expected the decision to come out the way it did were surprised by the unanimous vote of the Mexican justices, which sends a strong signal about the collective opinion of SCJN.

Will Border Crossings Reverse?

The two countries have had undulating patterns of border crossings in search of abortion in the past century.

Back in the 1940s, the post-World War II moral attack on "female independence," apparently manifested by "abortion mills," resulted in the closing of many abortion clinics in the U.S. In response, many American women sought reproductive care just south of the Border, where abortion providers had begun popping up—if only with a blind eye from Mexican authorities, since the practice was still illegal in Mexico.

This trend continued until the 1970s, when Roe became the law of the land in the U.S. and made abortions legal in Texas. But while pro-choice Americans celebrated this watershed ruling, Mexican women continued to live in a country where abortions were technically illegal, and where their only domestic option was to continue illicitly seeing unregulated providers. Thus, Mexicans along the frontier began looking north of the Border for legal and safer services. A major site of this new medical tourism could be found in the state of Chihuahua, whose largest city, Ciudad Juárez, is a stone's throw from El Paso, Texas.

But the subsequent decades have eroded the availability of abortion options in Texas, with the state attempting to pass tighter and tighter restrictions leading up to Senate Bill 8. Now, the Jackson ruling may be the clarion call for Americans along the border to reverse the trend. If Mexico continues in the direction indicated by SCJN, it will likely see the rise of legal and safer abortions within its own borders—and possibly an influx of women crossing south from the U.S. in search of rights that their own country denies them.

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