The unspeakable cruelty of El Salvador’s abortion laws
Lisa
Kowalchuk, The conversation, April 11, 2018
Kowalchuk, The conversation, April 11, 2018
Around
the world today we are seeing two opposite tendencies in abortion law reform.
the world today we are seeing two opposite tendencies in abortion law reform.
 |
| Women protest outside a courtroom in San Salvador in 2017, demanding the government free women prisoners who are serving 30-year prison sentences for having an abortion. (AP Photo/Salvador Melendez) |
In the
Americas, the governments of Bolivia,
Chile
and Mexico City recently lifted total bans on abortion. Other jurisdictions such as Ohio,
several states in Mexico and Poland
have passed or attempted tighter restrictions.
Even Doug
Ford, the leader of Ontario’s Progressive Conservative party, has voiced
openness to making abortion more difficult to access.
Ford, the leader of Ontario’s Progressive Conservative party, has voiced
openness to making abortion more difficult to access.
In El
Salvador, the clock is
ticking towards a May 1, 2018, deadline for reform that would
decriminalize abortion in two situations: When the life of the pregnant woman
is in danger and when an underage girl (but not an adult woman) becomes
pregnant through rape.
Salvador, the clock is
ticking towards a May 1, 2018, deadline for reform that would
decriminalize abortion in two situations: When the life of the pregnant woman
is in danger and when an underage girl (but not an adult woman) becomes
pregnant through rape.
The
attention of the world’s media was recently drawn to this country’s extreme
abortion regime by the commutations
of the 30-year prison sentences of two Salvadoran women. Their crime
was to have had a miscarriage. Both innocent women had served over a decade of
their sentences.
attention of the world’s media was recently drawn to this country’s extreme
abortion regime by the commutations
of the 30-year prison sentences of two Salvadoran women. Their crime
was to have had a miscarriage. Both innocent women had served over a decade of
their sentences.
To
understand what is at stake, we need to look at what makes El Salvador probably
the worst country on earth to have an unwanted or life-threatening pregnancy,
or a complicated miscarriage, especially if you are poor.
understand what is at stake, we need to look at what makes El Salvador probably
the worst country on earth to have an unwanted or life-threatening pregnancy,
or a complicated miscarriage, especially if you are poor.
I am a sociologist who has researched
health-care policy in El Salvador, including the expansion of
health-care services to the poor by the left-of-centre Farabundo Martí National
Liberation Front (FMLN) government.
health-care policy in El Salvador, including the expansion of
health-care services to the poor by the left-of-centre Farabundo Martí National
Liberation Front (FMLN) government.
As an
admirer of this government’s goals and achievements in health care, I am struck
by a contradiction: It has made genuine efforts to reduce maternal mortality
but during most of its nine years in office, it has failed to challenge a law
that may actually increase it.
admirer of this government’s goals and achievements in health care, I am struck
by a contradiction: It has made genuine efforts to reduce maternal mortality
but during most of its nine years in office, it has failed to challenge a law
that may actually increase it.
The
problem is not just the abortion ban itself, which El Salvador shares in common
with five other
Latin American and Caribbean nations.
problem is not just the abortion ban itself, which El Salvador shares in common
with five other
Latin American and Caribbean nations.
What has
made El Salvador unique on the international stage is the fanatical
over-application of the law by police, prosecutors and judges. And the
complicity of many doctors fearful of standing on the wrong side of the law.
made El Salvador unique on the international stage is the fanatical
over-application of the law by police, prosecutors and judges. And the
complicity of many doctors fearful of standing on the wrong side of the law.
An
extreme law zealously over-applied
extreme law zealously over-applied
Abortion
was made illegal in El Salvador in all circumstances in 1997.
was made illegal in El Salvador in all circumstances in 1997.
This was
reinforced two years later by a Constitutional amendment declaring that life
begins at conception.
reinforced two years later by a Constitutional amendment declaring that life
begins at conception.
Among the
small number of countries that maintain a complete ban, only in El Salvador has
law enforcement led to women being sent to prison for 30 to 40 years. To date more than 150
women and girls have been prosecuted. More than 28 women are
currently serving out cruelly long sentences.
small number of countries that maintain a complete ban, only in El Salvador has
law enforcement led to women being sent to prison for 30 to 40 years. To date more than 150
women and girls have been prosecuted. More than 28 women are
currently serving out cruelly long sentences.
 |
| In this December 2017 photo, Salvadoran Teodora Vasquez, found guilty of what the court said was an illegal abortion via a miscarriage, arrives in a courtroom to appeal her 30-year prison sentence. (AP Photo/Salvador Melendez) |
The
country’s penal code mandates a 12-year sentence for women convicted of having
an abortion. But if a miscarried or stillborn fetus is deemed viable by the
courts, women are
prosecuted for aggravated homicide.
In one
case, a 40-year
prison term was handed to a woman who miscarried at 18 weeks.
case, a 40-year
prison term was handed to a woman who miscarried at 18 weeks.
Many women
jailed for miscarriages did not even know they were pregnant.
jailed for miscarriages did not even know they were pregnant.
Women
have been criminalized
for obstetric emergencies because judges accept contradictory or non-existent
evidence that they intended to either end the pregnancy or kill an
early-term fetus.
have been criminalized
for obstetric emergencies because judges accept contradictory or non-existent
evidence that they intended to either end the pregnancy or kill an
early-term fetus.
It is
precisely the flimsiness of these cases that has enabled sentences to
eventually be overturned through strenuous efforts of organizations like the Citizens’ Coalition for the
Decriminalization of Abortion.
precisely the flimsiness of these cases that has enabled sentences to
eventually be overturned through strenuous efforts of organizations like the Citizens’ Coalition for the
Decriminalization of Abortion.
Harms to
health
health
In
addition to this clear violation of women’s civil rights, the extremist
application of the law imposes harms to health and life.
addition to this clear violation of women’s civil rights, the extremist
application of the law imposes harms to health and life.
For
example, Salvadoran doctors have refused to intervene medically when a
pregnancy endangers a woman’s life, as in the case of ectopic pregnancy. This
is when a fertilized egg becomes lodged in the fallopian tube, leading to
rupture and lethal internal bleeding if untreated. In such cases doctors have
stood by until the tube ruptures.
example, Salvadoran doctors have refused to intervene medically when a
pregnancy endangers a woman’s life, as in the case of ectopic pregnancy. This
is when a fertilized egg becomes lodged in the fallopian tube, leading to
rupture and lethal internal bleeding if untreated. In such cases doctors have
stood by until the tube ruptures.
There are
particular harms for very young girls and teens. Girls as
young as nine years old have been denied therapeutic abortion.
particular harms for very young girls and teens. Girls as
young as nine years old have been denied therapeutic abortion.
For these
children, the trauma of sexual violence is compounded by the physical risks
that childbirth poses to an immature body and the terror of going through with
a dangerous pregnancy.
children, the trauma of sexual violence is compounded by the physical risks
that childbirth poses to an immature body and the terror of going through with
a dangerous pregnancy.
Three out of
every eight maternal deaths in El Salvador are pregnant teens who take their
own lives.
every eight maternal deaths in El Salvador are pregnant teens who take their
own lives.
It is
also known that 13 per cent
of maternal deaths in less developed countries are caused by unsafe
abortions, which in turn become more frequent when abortion is illegal or
unavailable.
also known that 13 per cent
of maternal deaths in less developed countries are caused by unsafe
abortions, which in turn become more frequent when abortion is illegal or
unavailable.
Hundreds
of clandestine abortions certainly continue to occur each year in El Salvador
despite the ban. Health Ministry officials themselves acknowledge
that the law and its application undermine their efforts to reduce the maternal
mortality rate.
of clandestine abortions certainly continue to occur each year in El Salvador
despite the ban. Health Ministry officials themselves acknowledge
that the law and its application undermine their efforts to reduce the maternal
mortality rate.
Government-employed
doctors and poor women
doctors and poor women
What
makes this situation all the more poignant is that it only affects the poor and
poorly educated.
makes this situation all the more poignant is that it only affects the poor and
poorly educated.
These
women and girls can’t afford care in private hospitals and clinics where
doctors maintain patient confidentiality. Nor can they afford good legal
counsel.
women and girls can’t afford care in private hospitals and clinics where
doctors maintain patient confidentiality. Nor can they afford good legal
counsel.
Hand in
hand with this class bias is most
prosecutions of women for suspected abortion originate from doctors in
state-funded, public hospitals. Since the public system doesn’t
charge for services, it is the only option for low-income Salvadorans.
hand with this class bias is most
prosecutions of women for suspected abortion originate from doctors in
state-funded, public hospitals. Since the public system doesn’t
charge for services, it is the only option for low-income Salvadorans.
It is
also where there are more early-career
doctors who don’t want to jeopardize their futures; these doctors
fear that not reporting could be seen as assisting in an abortion, which for
health professionals carries a penalty of six to 12 years.
also where there are more early-career
doctors who don’t want to jeopardize their futures; these doctors
fear that not reporting could be seen as assisting in an abortion, which for
health professionals carries a penalty of six to 12 years.
Prospects
for change
for change
Taken
together, the deprivations of liberty and the physical and psychological
suffering that have resulted from El Salvador’s abortion regime have been
labelled torture by Amnesty International.
together, the deprivations of liberty and the physical and psychological
suffering that have resulted from El Salvador’s abortion regime have been
labelled torture by Amnesty International.
The
outcome of the abortion struggle in the political arena is highly uncertain.
outcome of the abortion struggle in the political arena is highly uncertain.
On the
one hand, almost 60 per cent
of Salvadorans now favour loosening the law when a woman’s life is
in danger, and fully 79 per cent when the fetus is not medically viable.
one hand, almost 60 per cent
of Salvadorans now favour loosening the law when a woman’s life is
in danger, and fully 79 per cent when the fetus is not medically viable.
As well,
a tentative coalition emerged among legislators in late 2017 in favour of a bill by a
maverick Nationalist Republican Alliance (ARENA) party member
proposing abortion be allowed in very limited circumstances.
a tentative coalition emerged among legislators in late 2017 in favour of a bill by a
maverick Nationalist Republican Alliance (ARENA) party member
proposing abortion be allowed in very limited circumstances.
On the
other hand, most of these lawmakers will be replaced on May 1, 2018 and ARENA
overall remains staunchly opposed to any liberalization of the law. The party
will have a large plurality of seats in the Legislative Assembly, dwarfing all
the others.
other hand, most of these lawmakers will be replaced on May 1, 2018 and ARENA
overall remains staunchly opposed to any liberalization of the law. The party
will have a large plurality of seats in the Legislative Assembly, dwarfing all
the others.
ARENA,
moreover, has used abortion to villainize
the FMLN, which has responded at times by sacrificing
women’s interests for success at the polls.
moreover, has used abortion to villainize
the FMLN, which has responded at times by sacrificing
women’s interests for success at the polls.
But
whatever legislators decide in the coming days, a broad
social movement for fundamental justice on this issue has created momentum for
change that will not likely subside.
whatever legislators decide in the coming days, a broad
social movement for fundamental justice on this issue has created momentum for
change that will not likely subside.
