Making the Best of it: A Conceptual Reconstruction of Abortion Jurisprudence in the United States and Mexico

Abstract

This article makes an effort to identify conceptual categories abstracted from the history of abortion case law in the United States, with the ultimate goal of building a conceptual constitutional framework that is more or less detached from the particularities of the legal system that created it. The result is then used to evaluate the unprecedented ruling by the Mexican Supreme Court in 2008 to decriminalize abortion. The study is divided into five sections. Section I asks why women should be allowed to have abortions. The answer to this question justifies the existence of the right to choose, which involves interests, rights, principles and values. Sections II and III consider how the State should regulate abortion procedures by presenting a detailed regulatory scheme born out of various concepts of United States jurisprudence. Section IV offers some general conclusions on American case law. Finally, Section V focuses on the decriminalization of abortion in the Mexico City Criminal Code. It offers an exercise in comparative law that gives a detailed account of the content of the newly reformed statute and its constitutional challenge in the Mexican Supreme Court, analyzing it through the newly constructed looking glass.