## Facts

- In 2000, Mexico City (Federal District) amended its local criminal law to use an “indication” system that removed criminal punishment for abortion in specified circumstances, including rape or forced insemination, serious threats to the pregnant woman’s health, certain serious fetal anomalies affecting survival, and abortions resulting from the pregnant woman’s negligent conduct.
- As part of those reforms, the legislature amended the Federal District Penal Code, including **Article 334, Section III**, which provided that no criminal sanction would apply when **two specialist physicians** had sufficient reason to diagnose **genetic or congenital alterations** that could result in physical or mental harm “to the point” of placing fetal survival at risk, provided the pregnant woman consented; the provision also required physicians to give objective and timely information about procedures, risks, consequences, and alternatives.
- The reforms also amended the Federal District Code of Criminal Procedure by adding **Article 131 Bis (often referenced as 131b)**, which authorized the **public prosecutor (Ministerio Público)** to approve an abortion within a short time period in cases connected to rape or non-consensual artificial insemination, subject to listed requirements (such as a complaint and verification of pregnancy).
- A minority group within the Federal District Legislative Assembly (plaintiff) filed an **acción de inconstitucionalidad** challenging the constitutionality of **(1) Penal Code Article 334(III)** and **(2) Criminal Procedure Code Article 131 Bis**.
- Justice **Olga Sánchez Cordero de García Villegas** prepared an opinion that treated Article 334(III) as constitutionally valid, and concluded Article 131 Bis was unconstitutional; the case proceeded to consideration by the Supreme Court of Justice of the Nation (SCJN) sitting in plenary.
- In plenary, the SCJN upheld the constitutionality of Article 334(III) by majority vote.
- Regarding Article 131 Bis, a majority of justices agreed it was unconstitutional, but the vote did **not** reach the **eight-vote supermajority** required in an acción de inconstitucionalidad to invalidate a law; as a result, the action was **dismissed as to that provision** and it remained in force.

## Issues

1. Whether **Article 334(III) of the Federal District Penal Code**, which eliminates criminal punishment for abortion in a narrowly defined fetal-anomaly scenario with medical certification and consent, is constitutional in light of asserted constitutional protection of life and related rights.
2. Whether **Article 131 Bis of the Federal District Code of Criminal Procedure**, which assigns the public prosecutor a role in authorizing abortion in rape/forced insemination cases, is unconstitutional—and if so, what effect the SCJN may give that conclusion given the voting rules governing an acción de inconstitucionalidad.

## Decision

- The SCJN **upheld Article 334(III)** as **constitutional**, treating it as an **excusa absolutoria** (a rule that leaves the offense defined but bars punishment in specified cases).
- A majority of justices voted to find **Article 131 Bis unconstitutional**, but because the vote **did not reach eight justices**, the SCJN **did not invalidate** the provision in this abstract review proceeding.
- The action was therefore **dismissed (desestimada) as to Article 131 Bis**, and that article **remained legally in force** despite the majority view on its constitutionality.

## Legal Principles

- In Mexican criminal law, an **excusa absolutoria** allows the legislature to keep conduct typified as a crime while **precluding punishment** in limited circumstances; it differs from an **excluyente de responsabilidad**, which prevents criminal responsibility from arising in the first place.
- Constitutional protection of human life, including the “product of conception,” does not necessarily require that the legislature **punish every abortion**; the legislature may set **non-punishability** rules as part of criminal policy choices, provided the design is constitutionally permissible.
- Where a non-punishability rule is tied to medical conditions, requirements such as **specialist certification** and **informed consent** may function as safeguards supporting the rule’s validity.
- In an **acción de inconstitucionalidad**, the SCJN may invalidate a challenged norm only if the required **qualified majority (eight votes)** is reached; otherwise, the action is dismissed as to that norm and it **remains effective**, even if a simple majority supported invalidation.

## Conclusion

The SCJN sustained Mexico City’s limited non-punishability rule for abortion in severe fetal-anomaly cases under Article 334(III), characterizing it as an excusa absolutoria supported by medical certification and consent requirements, while the challenge to prosecutor-based authorization under Article 131 Bis failed procedurally because the Court did not reach the eight-vote threshold needed to strike the provision in an acción de inconstitucionalidad, leaving Article 131 Bis in force.


Representative of the Federal District Legislative Assembly v. Article 334(III), Penal Code & Article 131b