By María Fernanda Aguayo González

Director of Gender Equality - Federal Judiciary Council

and Rebeca Saucedo López

Drafting Secretary PJF Chihuahua

Justice has opened the door to care as an enforceable right, but without state action, is there a risk that the ruling will be just another echo amid institutional silence?

In the article Beyond the recognition of the right to care in Mexico published on the Agenda Estado de Derecho portal (https://agendaestadodederecho.com/), it was highlighted that the recognition of the right to care by the First Chamber of the Supreme Court of Justice of the Nation, in the direct amparo 6/2023, opened the possibility that a jurisprudential line on that right would be triggered, not only by the Court itself, but by lower hierarchy federal courts, such as the amparo courts.

An example of that judicialization process of the right to care, which was mentioned on that occasion, is the amparo trial 681/2024 of the First District Court in Administrative Matters of Mexico City, through which the omission of the Congress of said federal entity to approve the initiatives on the Comprehensive Care Law was challenged, which we will talk about on this occasion.

The sentence issued in said amparo trial was subject to review by the Nineteenth Collegiate Court in Administrative Matters of the First Circuit, in the amparo review 324/2024; resolution that represents an important step in the construction of the right to care as an enforceable and justiciable right in Mexico.

This ruling acknowledges that both the Mexico City Congress and the Head of Government have committed a legislative omission by failing to comply with the provisions of Article 9, Section B, and the Twentieth Transitory Article of the Mexico City Constitution, which set December 31, 2023, as the deadline for enacting the Care System Law. This recognition is a crucial step forward, as it elevates care from a desirable social or political demand to a concrete constitutional obligation, the omission of which can be challenged in court.

This ruling clarifies that it is not merely a relative omission, due to a lack of suitability or implementation, but an absolute omission of the duty to legislate. This reinforces the idea that the right to care should no longer be a symbolic matter, but should be treated as a fundamental right, directly linked to judicial enforceability. Thus, it emphasizes that care, and especially self-care, are no longer just aspirations, but enforceable rights within the Mexican legal system, citing the Supreme Court's decision in direct amparo case 6/2023.

This ruling is not an isolated event. It forms part of a broader path forged by those who have fought for the recognition of care as a human right and a matter of redistributive justice, especially from feminist perspectives and the care economy. It also aligns with a line of jurisprudence emanating from the Supreme Court of Justice of the Nation, according to which legislative omissions can be challenged through amparo proceedings, breaking with the tradition of deference to legislative oversights. Thus, the ruling opens a door, but also invites us to reflect on what remains to be done, particularly regarding the effective implementation of this right.

A step forward in the enforceability of the right

One of the most positive aspects of this ruling is that it not only holds Congress responsible, but also recognizes that the Head of Government of Mexico City shares responsibility for the omission. This dual attribution is fundamental, as it breaks with the traditional view that the Executive can only act once the Legislature has done so. In this case, the court emphasizes that the Executive has an active responsibility: it is not enough to wait for a law to begin implementing the care system. The Head of Government cannot justify her administrative inaction based on the lack of a law.

This broadens the scope of enforceability of the right to care and reinforces the interpretation of Article 1 of the Mexican Federal Constitution, which obligates all authorities to promote, respect, protect, and guarantee human rights. The ruling not only reaffirms the normative value of care but also opens an important door for further developing a solid body of case law that will eventually translate into effective public policies.

Challenges of resolution

This ruling is not without its challenges. From our perspective, one of the main ones is its effective implementation. The injunction granted orders the Mexico City Congress and the Head of Government to adopt concrete measures to implement the care system. While it is expected that the authorities will comply with the court's decisions, what we have seen in practice is that, at times, its effectiveness is contingent upon political will.

This obstinate attitude that authorities sometimes display toward the timely enforcement of court rulings is facilitated by weak or permissive judicial execution, whereby judges fail to enforce the measures at their disposal to compel compliance—fines, even possible removal from office and prosecution under Article 192 of the Amparo Law. In this regard, it is crucial that the Judiciary assume a much more active and decisive role, not only as an interpreter but also as a guarantor of rights. This includes monitoring, verifying, and, if necessary, sanctioning non-compliance. Otherwise, the risk is that this ruling, despite its transformative value, will be diluted into empty declarations.

This case thus reveals one of the structural tensions of the constitutional state: the gap between the judicial declaration of rights and their material realization in people's daily lives, particularly those in situations of dependency and those who care for them. We hope that, in this case, the authorities' commitment to creating a care system will translate into concrete public policies that accommodate the diverse realities of those who provide care and those who need it.

Opportunities for future failures

In future rulings, it would be desirable for judges to more clearly outline some guidelines on the minimum components that legislation in this area should include. This would not only contribute to a more coherent and effective implementation of the care system, but would also facilitate appropriate "regulatory engineering" to design concrete and sustainable measures that take into account the specific social context.

Therefore, while this ruling is a positive step toward the effective exercise of the right to care, it should not be considered an end point. Its true value lies in what it suggests: the possibility that the Judiciary, in addition to recognizing rights, can contribute to promoting institutional processes that make them a reality. This would imply not only ordering the enactment of laws, but also enabling provisional mechanisms, requiring action plans with specific deadlines and responsible parties, and engaging the Executive branch, through its various ministries, to immediately begin building the care system, even if only on a pilot basis.

Let us remember that institutional time is not neutral: every month without a law, every year without a system, translates into overburdened women, dependents without support, and a state that continues to rely on unpaid work as the invisible pillar of its sustainability. Justice cannot wait any longer.

The right to care is already enshrined in the Constitution of Mexico City and in international treaties, such as the Inter-American Convention on Protecting the Human Rights of Older Persons. What is lacking is political will, institutional coordination, and funding. A ruling that acknowledges an omission is a victory, but also a call to action: concrete steps must be taken so that these rulings can effectively become tools for transformation.

Finally, we trust that the announcement of the National Care System in the National Development Plan 2025-2030, published on April 15, will contribute to building a truly inclusive and effective care system, enriched by state and municipal experiences, and by the resolutions of the judicial branches that are supporting the process of building the right to care in Mexico.