“Abortion” in English is aborto provocado in Spanish. “Miscarriage” is aborto espontáneo. Simple enough.
Yet in El Salvador, a largely Catholic Central American country of around 6 million, this distinction has been blurred. For many expectant mothers, spontaneous pregnancy losses – unexpected, frightening, and tragic – have been declared intentional and criminal. Some of these mothers are doing hard time.
Why is this happening?
The country’s 1998 penal code – which was enacted under a right-wing president but remains in force under the country’s current center-left government – prohibits abortion in all circumstances. That includes even when the mother’s life is endangered by the pregnancy, the fetus is severely abnormal or nonviable, or the pregnancy is the result of rape or incest. Shortly after the code went into effect, the country’s constitution was amended to give the embryonic human a right to life from the moment of conception, reinforcing the total ban.
Now a woman convicted of having an abortion can be sentenced to 2-8 years in prison, while medical professionals assisting her can serve 6-12 years. Complicating matters, penalties for women increase dramatically when they’re charged with aggravated homicide of a family member, which can happen when the lost fetus is considered to have been viable. Mothers can be sentenced up to 50 years in prison on these charges.*
This August, I was part of a U.S. delegation led by Roy Bourgeois from the School Of Americas Watch and organized by the Center for Exchange and Solidarity, or CIS. We went to San Salvador to learn more about this no-exception anti-abortion law and the punitive atmosphere it has fostered.
We also wanted to meet some of the law’s collateral damage: the women known as Las 17.
Blurring the Lines
In April of last year, there were approximately 30 women who’d either already been convicted or were being prosecuted for alleged abortion-related crimes. Of those, 17 had exhausted all but one of their legal remedies: an official pardon.
All 17 had suffered stillbirths or complications at birth that were later declared aggravated or imperfect aggravated homicides by the courts – all without a presumption of innocence, any real evidence, or due process. When lawyers petitioned for their pardons that month, Las 17 suddenly became the public face for all women facing incarceration for pregnancy loss.
We met Dennis Muñoz, one of those attorneys, and Abraham Abrego, who directs the Foundation for the Study and Application of Law, or FESPAD. Both told us that the distinction between aborto provocado and aborto espontáneo – although established in law – has been compromised in practice. For Abrego, the confusion “is a serious human-rights issue.” Muñoz described cross-examining a doctor who simply said, “It’s all abortion.”
It can be a convenient confusion. Health professionals are required to report suspected crimes, although the Criminal Procedures Code exempts them when doing so would violate confidentiality. Nevertheless, add the fear of being perceived as assisting with an abortion, and a conflict arises for health care workers: whether to put themselves or their patients at legal risk.
Of the 129 Salvadoran women prosecuted after pregnancy loss from 2000 to 2011, more than half were reported to police by health professionals charged with their care.
Presumption of Guilt
Beyond confusions about language and law, there are still other factors putting innocent women in prison.
Abrego contends that fundamentalist religious beliefs are influencing public policy, insisting that the condemnation of women who lose their pregnancies is “more moral than legal.” Muñoz blames machismo culture for its emphasis on women’s reproduction. He’s said that in El Salvador, “A woman who is not a mother is not a woman. They are idealized and, whatever their state of health, they must save their child.”
When the baby is lost, according to Muñoz, poor women face a “presumption of guilt” that “they killed their babies because they didn’t want them and couldn’t care for them.”
According to Kathy Bougher, who’s written extensively about Las 17, “Most arrived at public hospitals with severe hemorrhaging, and doctors determined they had given birth. At that point, many of the doctors accused the women of provoking an abortion.” Dr. José Miguel Fortín Magaña, director of El Salvador’s Institute for Legal Medicine, later declared that the women had “assassinated” their babies after live births.
In these cases, according to Bougher, “prosecutors almost never presented evidence that the woman had taken any action to cause the death of the baby – but the fact that she was the mother was enough.”
Fortín Magaña has tried to support his accusations with forensic evidence, using the hydrostatic “float test” during autopsies to determine whether the baby was born alive. His results were used to convict eight of Las 17. However, U.S. forensic pathologist Dr. Gregory Davis studied the medical evidence and found it inconclusive, at best.
Last year, Davis’ report – which specifically takes issue with the float test – was given to members of El Salvador’s Supreme Court and National Assembly. Davis was astonished that such an “outdated and unreliable” test, one that has lacked scientific credibility for 100 years, had figured prominently in women’s convictions.
CIS director Leslie Schuld put the prosecution – some call it persecution – of the women in broader context: “In a country where homicides are a daily occurrence, where only 4 percent of homicides are brought to justice and prisons are gravely overcrowded, it is ridiculous to go on a crusade against poor, humble women whose only crime is not being able to deliver a living baby.”
Serving Hard Time
Nine of Las 17 are serving prison sentences of 30 years. María Teresa has served four of her 40 years, the longest sentence. Ena and Johana have the shortest sentences – 15 years. Two of the 17 have been released since the pardon process began: Guadalupe after 7 years because of judicial procedural errors, and Mirna after nearly 13 years in prison.
We met nine of the 17 at the “Women’s Readaptation Center” in Ilopango. Sitting in plastic chairs on a sidewalk outside humble offices, we watched inmates passing through a carefully guarded metal door. The living conditions behind it were invisible to us, but they’re notoriously miserable.
The Ilopango prison holds 2,000 women. It was designed to hold 225, so that puts it at 900 percent occupancy. One woman reported that she shares a single mattress with five other inmates. Water is rationed. The clinic lacks medicines, and inmates must rely on families to provide their personal items.
But the population is poor and drawn from an extended area, so families often can’t even visit, much less bring provisions. Alba, for instance, has no visitors or outside support for herself, although her mother-in-law is caring for her young daughters. María Teresa asked her mother to put whatever money she could spend to visit toward schoolbooks for Oscar, her now-10-year-old son.
At the time of her arrest, María Teresa had been working in a factory and raising her 6-year-old son as a single mother. She had health problems and was accustomed to back pain, so she didn’t realize she was pregnant. Like so many of the women we met, Maria Teresa miscarried in the latrine, unaware she’d passed a fetus. Then, bleeding heavily, she called the police for transport to the hospital.
She was unconscious when they arrived hours later. When she woke up in the hospital, she was handcuffed. She was convicted of aggravated homicide.
Johana, the mother of a young daughter, slipped and fell while she was eight months pregnant. The next day she began to have “quick and strong pains.” Thinking she needed to use the bathroom, she passed the baby in the latrine. She called the police for help, and they were able to retrieve her son, who survived. Her now-8-year-old son lives with his 10-year-old sister and relatives. Johana was convicted of imperfect aggravated homicide.
The women we met have become a family within prison walls. They share support and understanding, and they help each other bear a tremendous injustice, which includes being mistreated by other inmates for “killing their babies.” Their greatest pain is being separated from their families and young children. Their grief was palpable.
Since 2009, El Salvador’s Citizen Group for the Decriminalization of Therapeutic, Ethical, and Eugenic Abortion has worked to raise awareness about sexual and reproductive healthcare in the country, to reform the law, and to provide legal assistance to women accused or convicted of abortion-related crimes. They are petitioners in the pardon process for Las 17.
In 2012, they published From the Hospital to Jail, a study (cited above) that identified 129 women who’d been prosecuted for abortion-related crimes between 2000 and 2011.
Of these, 49 were found guilty. It’s not known how many of these women actually aborted (or why) and how many simply lost their pregnancies. Most of them were under 25 and uneducated. Every single one was poor, placing them at greater risk for pregnancy loss related to malnutrition and inadequate health care.
As the name suggests, the organization believes women are entitled to safe and legal “therapeutic” abortions when the mother’s life is endangered, to “ethical” abortions when the pregnancy results from rape or incest, and to “eugenic” abortions when the fetus has severe abnormalities or is nonviable.
It maintains that a limited decriminalization could improve the hostile climate toward poor women, allowing a degree of reason and fairness to enter the legal process. Also, doctors’ fears of being falsely accused of providing illicit services could diminish, making them less likely to report women who suffer miscarriages, stillbirths, or complications at childbirth.
Director Morena Herrera has said that she and other activists often are misunderstood: “Some people think we are defending abortion, not the rights of women. They think we don’t like kids. Sometimes there are situations of threats.”
The political climate – even with a left-leaning president – is such that even progressive politicians are finding it difficult to speak out for Las 17, fearing retaliation at the polls. But Muñoz takes the long view and points to successes. For one, he says the word aborto has finally entered into public discussion. That alone is real progress, even when the conversation seems more polarizing than productive.
Furthermore, two women have been pardoned and eight others released after receiving reduced sentences. A support group is helping those freed women reintegrate into society. And Las 17 continues to gain international support – most recently from 55 members of the U.S. Congress.
Meanwhile, determined Salvadoran activists continue to challenge machismo culture – and model a new one – by promoting diversity, equality, mutual respect, and solidarity.
*Correction: An earlier version of this article appeared to suggest that women who suffer early-term pregnancy losses can be charged with aggravated homicide. In fact, that specific charge applies only to women who lose fetuses believed to have reached viability.
I also wish to thank Professor Jocelyn Viterna, who pointed out that the pregnancy losses suffered by Las 17 were more advanced than “miscarriages” in the strictest sense of that word: The women instead suffered stillbirths and complications at childbirth. Since “miscarriage” is also used more broadly, including in reportage and analysis about Las 17, I’ve retained its usage in the title while revising the article to use the language of pregnancy loss more precisely.