Nora E. Jaffary is a professor of history at Concordia University. She is the author of Reproduction and Its Discontents in Mexico: Childbirth and Contraception from 1750 to 1905 and False Mystics: Deviant Orthodoxy in Colonial Mexico (Nebraska, 2008). Her latest book Abortion in Mexico: A History (Nebraska, 2024) was published in October.

Abortion in Mexico concisely examines the long history of abortion from the early postcontact period through the present day in Mexico by studying the law, criminal and ecclesiastical trials, medical texts, newspapers, and other popular publications.

Nora E. Jaffary draws on courts’ and medical practitioners’ handling of birth termination to advance two central arguments. First, Jaffary contends, the social, legal, and judicial condemnation of abortion should be understood more as an aberration than the norm in Mexico, as legal conditions and long periods of Mexican history indicate that the law, courts, the medical profession, and everyday Mexicans tolerated the practice. Second, the historical framework of abortion differed greatly from its present representation. The language of fetal personhood and the notion of the inherent value of human life were not central elements of the conceptualization of abortion until the late twentieth century. Until then, the regulation of abortion derived exclusively from concerns for pregnant people themselves, specifically about their embodiment of sexual honor.

Introduction

All of our families harbor stories of unplanned, impossible pregnancies. Some of the women in my own family, willingly or unwillingly, carried such pregnancies to term. Some, lawfully or unlawfully, aborted their pregnancies. The same is surely true for you. Across time and space, these women’s stories yield many parallels. This book places the experiences of such women, their communities, and the legal contexts in which they lived in historical perspective through its discussion of the history of abortion in Mexico from the colonial period to the present. It examines Catholic attitudes toward abortion, the medical practices used over time to interrupt pregnancy, and the relationship between these attitudes and practices and changing constructions of gender. The book’s central focus, however, is on the evolving regulation of abortion in the law. This is a long history to pack into a short book. Let me introduce it by telling you some of the central things I have uncovered in my research on this important and divisive topic.

Abortion in Mexico: The Present and the Past

At the time of writing, Mexico is at a pivotal moment in terms of its judicial and legislative apprehension of abortion. In line with many parts of Western Europe and the Americas (with the significant exception of the United States) for the past twenty years, Mexico has moved to liberalize abortion law. Mexico City initiated a series of legislative changes to what was then called the Distrito Federal’s (Federal District’s) abortion laws in 2000 with a set of modifications to the capital’s penal code, which had endured largely unchanged since 1931. These reforms are referred to as Ley Robles (the Robles law), after feminist Rosario Robles, Mexico City’s Partido de Revolución Democrático (Revolutionary Democratic Party, or PRD) mayor, who initiated the modifications. The Robles law involved several changes to the 1931 code. Among others it deemed that no sanctions for abortion would apply when pregnancy threatened a woman’s health (rather than only her life), when severe genetic or congenital conditions threatened the survival of the “product of conception,” or when a woman was impregnated in instances of nonconsensual artificial insemination. Further, it eliminated those clauses that allowed lighter sentencing in what are known as the honoris causa qualifications on abortion sentencing. These clauses, incorporated into the Distrito Federal’s 1871 penal code, had allowed for lighter sentencing of women convicted of abortion who were not of ill repute, those who had successfully concealed their pregnancies, and those who had conceived outside of marriage.

The 2000 reforms emerged from a complex context. The forces that helped establish it included two decades of feminist demands for increased reproductive rights and the international acknowledgment of the imperative of expanding such rights expressed in two United Nations conferences in 1994 (Cairo) and 1995 (Beijing), both of which addressed internationally high rates of female mortality due to unsafe abortions. The 2000 reforms also arrived in the wake of the historic presidential elections of the same year, in which the Partido Revolucionario Institucional (Institutional Revolutionary Party, or PRI) lost power after eight decades of monopoly of the office, an event presaged by its loss of the mayorship of Mexico City to the PRD under the leadership of Robles’s predecessor, Cuauhtémoc Cárdenas, in 1997. Opponents of the Robles law challenged its legality before the national Supreme Court, the Suprema Corte de Justicia de la Nación (SCJN), but in 2002 the court upheld the constitutionality of the law. However, the court did not base its judgment on assessments of either women’s constitutional rights to bodily autonomy or on a negation of the idea of fetal personhood. Rather, it based its position on a technicality: that the legal changes the Robles law introduced did not challenge either the criminality of abortion or the notion of fetal personhood, but only conservatively dictated that abortion would remain criminal but would not be sanctioned—that is, punished.

Further dramatic legal changes occurred in 2007, when Mexico City again revised its penal code to legalize abortion during the first trimester of pregnancy, joining only two other Latin American countries where the procedure was lawful at the time. A PRI deputy, Armando Tonatiuh González, introduced the act, which he justified in terms of the constitutionality of the separation of church and state, the argument that first-trimester human embryos were not “people,” and the assertion that the penalization of abortion curtailed women’s human and civil rights. Among its key elements was the 2007 law’s definition of pregnancy as “the period of time in the process of human reproduction that begins with the implementation of the embryo in the endometria.” The law did not classify the termination of the product of conception before this date as an abortion and, therefore, did not penalize it. The 2007 changes also mandated that abortion would be available free of charge in public hospitals in Mexico City, and available at moderate prices for women from other states or countries. The SCJN heard legal challenges to the 2007 law the following year and again upheld it, this time on a more substantive ruling, as judicial scholar Alejandro Madrazo observes. It asserted that “there were no constitutional grounds to claim that a fetus has a right to life” and judged that decriminalizing first-trimester abortion was an “ideal” means to safekeep women’s biological autonomy and their health.

The Secretaría de Salud issued an additional significant regulation affecting women’s access to abortion in 2009. Norma Oficial Mexicana (NOM) 046, a mandatory regulation concerning violence against women, had broad jurisdiction over medical, public health, and social service institutions. Among other regulations NOM 046 required the provision of abortion to women and girls impregnated in instances of rape who requested the service. While the Distrito Federal’s 1931 penal code, and all states in Mexico following it, had decriminalized abortion in cases of rape, state agencies in the second half of the twentieth century did not always follow the law on this point. The Mexican state was forced to adopt NOM 046 in the wake of Paulina del Carmen Ramírez Jacinto’s successful and instrumental suit with the Inter-American Commission on Human Rights (IACHR), settled in 2007. Ramírez Jacinto, then aged fourteen, had been raped and impregnated during a home robbery in Mexicali (Baja California) in 1999. Although Baja California’s penal code permitted first-trimester abortions in such cases, various medical and legal authorities, including the state attorney general and medical staff at the Mexicali General Hospital, repeatedly and illegally blocked her access to the procedure. In the wake of her enforced pregnancy and the subsequent birth of her son, Ramírez Jacinto’s representatives lodged a petition with the IACHR, which accepted their claim. The IACHR resolved the case with the Mexican state and the State of Baja California in 2007 for a cash settlement, a public acknowledgment of the state’s culpability, and a governmental commitment to enforce a broad set of directives combatting violence against women and supporting women’s rights to lawfully terminate pregnancies.

In the fall of 2021, the SCJN issued a series of momentous judgements than even its earlier ruling upholding the Federal District’s legalization of first-trimester abortion. On September 7 it issued a unanimous ruling in a case involving the state of Coahuila’s penal code, which had decreed that women who voluntarily aborted, or those who enabled the abortion, should be imprisoned for one to three years. The SCJN declared the Coahuila’s law unconstitutional, ruling that the “product of gestation deserves protection that increases as the pregnancy advances.” Nevertheless it ruled that this protection did not supersede the rights of women and pregnant people to reproductive liberty. The ruling, since it applied only to Coahuila’s state code, rather than constituting the last word on abortion in Mexico, will no doubt represent the beginning of another set of legal and judicial conflicts that will unfold in the coming decade as other states in the federation bring their codes in line with the ruling, which, given its unanimity in the court, sets a binding precedent for subsequent state and federal judges.

Two days later the SCJN ruled against the lawfulness of state constitutions decreeing that human life began at conception, or that embryos possessed protections equal to persons, and reserved for Mexico’s General Constitution the right to establish personhood. Finally, a few days after this, it issued a decision challenging a clause of the 2018 Ley General de Salud (General Law of Health), which had granted medical personnel the right to conscientiously object to the performance of particular procedures, as the court explained, “without establishing limits necessary to ensure patients’ rights to health care.” One of the rulings’ interesting international repercussions, coinciding as they did with increasingly restrictive legislation on abortion access north of the border in Texas, was that, in their wake, pro-choice organizers in northern Mexico responded immediately by organizing to assist women in Texas, a state that in May 2021 made abortions illegal in virtually all instances.

Mexico, like many places, has just entered a dramatic new era of legal abortion access, following three decades of heated conflict between pro-life and pro-choice advocates. Current generations are inclined to assume that the social and ethical tensions that abortion raises today were likely the same in the past, but this is not the case.