Abortion as a Fundamental Right in Mexico: Exploring the Multiple Layers of Reproductive Freedom

Abstract This paper explores the significance of recognizing abortion as a fundamental right under constitutional law in Mexico, highlighting its role in advancing reproductive freedom, gender equality, and health as fundamental rights in a democratic society. Through an in-depth analysis of the relational constitutional reasoning employed by the Supreme Court of Justice of Mexico in its 2021 rulings, the paper argues that reproductive freedom-understood as a “multi-layered” right-emerges from the application of a gender perspective in constitutional adjudication, particularly in complex cases. By considering feminist social mobilization since the 1970s and the strategic litigation of abortion cases at both national and international levels since 2000, the paper demonstrates how Mexico’s constitutional jurisprudence has incorporated the historical claims and discourses of the feminist movement, framing abortion as a human rights issue. It further examines how recognizing abortion as a fundamental right in a constitutional democracy requires the State to uphold secularism, employ criminal law only as a last resort (ultima ratio) in regulating human reproduction, and actively promote gender equality. Finally, the paper examines the legal and political challenges to advancing reproductive freedom within the context of federalism and recent judicial reforms in Mexico.