Alejandro Madrazo & Estefania Vela

89 Texas L. Rev. 1863

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In this Article, Professor Madrazo and Ms. Vela explore recent cases decided by the Mexican Supreme Court involving sexual and reproductive rights to better understand the development of the court as a constitutional arbiter following constitutional reforms enacted in 1994, which began the Ninth Era of the Supreme Court.  Prior to the reforms, the court decided cases, but laws held unconstitutional were simply inapplicable to successful challengers.  Following the reforms, the court was able to strike down unconstitutional laws for the first time.  Although initially limited to conflicts between political classes, the court has taken on an increasing number of cases concerning citizens directly.

Madrazo and Vela first discuss the background of, and decisions issued in, seven important cases regarding sexual and reproductive freedoms.  These cases, involving both the acción de inconstitucionalidad and amparo challenges, were selected by the authors because of what they said, and for what they did not say, about the rights involved.

Following this discussion of cases, Madrazo and Vela provide a more detailed analysis of the rights involved—sexual and reproductive liberty.  While both have a common origin, this Article illustrates the different developmental paths that the supreme court has taken with each.  Madrazo and Vela explain how sexual liberty has developed as a three-pronged right “from a comparatively feeble mooring in the text of the constitution,” while discussion of reproductive liberty has been largely avoided.

Finally, the authors attempt to compare and understand the “two very different attitudes taken by the court to address similar and interrelated matters regarding similar and interrelated rights.”  The “creative and activist court” that deals with the right to sexual liberty is juxtaposed with the “evasive, minimalist court” that is seen in dealing with reproductive liberty.  Madrazo and Vela suggest that this may be a result of the complex transition being undertaken by the court as it moves from being a court of law to being a constitutional tribunal.