Analysis Abortion

Tragedy in El Salvador: Church-Supported Laws Lead to Death of Mother Jailed After Miscarriage

Jodi Jacobson

El Salvador today is not a good place to be a woman. In 1998, the government passed a new Penal Code creating a complete ban on abortion. No exceptions. And now with the pregnancy police combing hospitals, even women with miscarriages are going to jail.

El Salvador today is not a good place to be a woman. In 1998, the government passed a new Penal Code creating a complete ban on abortion. No exceptions. This was a shift from an earlier law which allowed abortions in cases of threats to the health or life of the woman, as well as for rape, incest, or severe fetal abnormality. Passage of the ban made El Salvador one of only five countries in Latin America–including Nicaragua, Honduras, Dominican Republic, and Chile–that maintain an absolute ban abortion.

And now women’s groups are fighting it. Today, the Center for Reproductive Rights joined with local Salvadoran organization Colectiva de Mujeres para el Desarrollo Local to file a petition with the Inter-American Commission on Human Rights protesting the current law and based on the case of a woman who died in prison after being jailed for a miscarriage.

Reading the words of the ban underscores just how draconian it is. Chapter II of El Salvador’s reformed Penal Code, dealing with “Crimes Against the Life of Human Beings in the First Stages of Development,” penalizes women who induce their own abortions; give their consent to someone else to induce an abortion; doctors, pharmacists or other health care workers who practice abortions; persons who encourage a woman to have an abortion or provide the financial means to obtain an abortion; and persons who unintentionally cause an abortion. According to an October 2010 shadow report to the United Nations Human Rights Committee, Report on Violations of Women’s Human Rights Due to the Complete Criminalization of Abortion:

El Salvador’s restrictive abortion laws were further solidified in 1999 with a constitutional amendment defining a human being “from the moment of conception.

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For good measure, and to make sure these laws were strictly enforced against apparently dangerous women trying desperately to control their lives, the country established a policing apparatus to prosecute, investigate and denounce any suspicious activities in public hospitals and other places in the country.

El Salvador’s ultra-conservative Catholic Church hierarchy played a leading role in passing the new law banning abortion under any circumstance. A human rights analysis conducted in the years after the new penal code was put in place underscores how the shift in the Church’s leadership and philosophy, from the seventies when it focused on social justice and organizing peasants to the nineties, when things changed dramatically, contributed heavily to passage of the ban. According to the analysis, the Roman Catholic Church and right-wing Catholic groups in countries like El Salvador… “exert direct influence on regulatory changes that limit the exercise of women’s rights, counter to international agreements.”

The Catholic Church’s role as a protector of social justice and human rights, and its impact on social issues changed… with the appointment of the new Archbishop of San Salvador. He is a member of the right-wing Opus Dei and has the support of the ruling class as well as close ties with right-wing nongovernmental organizations. This change has influenced the stance of both the Church and the government with regard to social issues that affect women in particular.

In 1997, the Church and right-wing Catholic groups joined with others in a full-on campaign against abortion, mobilizing students from Catholic schools, campaigning through the media and using other means of pushing for the passage of the new penal code and the complete ban until it was passed.

Since its passage, according to CRR, “the ban has resulted in tragic and often fatal consequences” for the women living in the country, resulting in “the arbitrary imprisonment of women suffering from miscarriages and complications in their pregnancies.” 

Such was the case of “Manuela” (a pseudonym). According to CRR, Manuela was a 33-year-old Salvadoran mother of two who was  convicted of murder and sentenced to 30 years in prison after suffering an apparent miscarriage and severe complications giving birth. No trial, no appeal. Thirty years.

From the moment Manuela arrived at the hospital seeking emergency health  care, slipping in and out of consciousness and hemorrhaging, doctors treated her as if she had attempted an abortion and immediately called the police. She was shackled to her hospital bed and accused of murder.

Manuela  was sentenced to 30 years in prison without ever having a chance to  meet with her lawyer, without an opportunity to speak in her own defense, and without the right to appeal the decision. Shockingly, the  judge overseeing her case said that “her maternal instinct should have  prevailed” and “she should have protected her child.”

After several months in prison, it was discovered that the visible tumors Manuela had on her neck for which she sought medical care several times without being accurately diagnosed, was advanced Hodgkin’s lymphoma — a  disease that likely lead to the severe obstetric emergency she suffered.

“Tragically,” continues CRR, “Manuela did not receive the appropriate treatment for her disease and died in prison in 2010, leaving behind her two young children.”

Her illness could have been caught earlier if she had received adequate  medical attention when she consulted about her tumors in years prior, and if medical officials treating her during her emergency paid any  attention to her condition, rather than focusing on reporting her to  authorities.

This case exhibits all the most draconian aspects of already-draconian anti-choice laws, many of which are in now in force in various parts of the United States. Profound and fundamental mistrust of women. Abusive laws that remove from women any choice in whether, when, with whom, and under what life or health circumstances to have a child or another child. Policing of maternity wards. The criminalization and arrest of women who have had miscarriages. Disregard for the right to life of living, breathing women.

“El  Salvador’s laws have turned emergency rooms into crime scenes,” said Nancy Northup, president and CEO of CRR, “forcing pregnant women to live under a dark cloud of suspicion. The  international community must come together to demand an end to this  cruel treatment of women and make a commitment to safeguard fundamental  reproductive rights.”  Like Manuela, many women in El Salvador who miscarry or experience emergency obstetric complications are charged with aggravated murder, for which they can be  imprisoned for up to 50 years, and subsequently spend decades behind bars.

Is this just? Is this what is meant by “right to life?”

The legal campaign by CRR and Colectiva de Mujeres marks the first time an international judicial body will hear the case of a woman imprisoned for seeking medical care due to  obstetric emergencies, as a result of a total abortion ban. The case  argues that El Salvador’s absolute ban on abortion violates a number of  human rights, including the right to life, right to personal integrity  and liberty, right to humane treatment, and the right to a fair trial and judicial protection.

“Salvadoran  women have been unjustly persecuted by their government for far too  long,” said Mónica Arango, CRR’s regional director for Latin America and  the Caribbean. “We are bringing Manuela’s case before an international  human rights body so women won’t suffer the same tragic fate, and El  Salvador can finally be held accountable.”

“Liberalizing  restrictive abortion laws, like El Salvador’s, is essential to saving the lives and protecting the health of millions of women across the  globe every year,” said Northup. “Study after study has shown there are no positive outcomes to banning abortion outright.”

A recent study by the World Health Organization and the Guttmacher Institute  underscores what has been shown before: Restrictive abortion laws are not associated  with lower rates of abortion. According to the study, the 2008 abortion rate in Latin America—a region where abortion is highly restricted in almost all countries—was 32 per 1,000 women of childbearing age, while in Western Europe, where abortion is generally permitted on broad  grounds, the rate is just 12 per 1,000.

Apart from the very real, though largely invisible tragedies of women like Manuela imprisoned for miscarriage or those who may have been arrested for thwarting a law that assigns absolutely no value to their lives, there is another critical issue here as well. 

The proliferation of abortion bans and other such laws at the state level in the United States, the efforts to eliminate access to contraception for a large share of women in this country, the heavy involvement of the United States Conference of Catholic Bishops in laws and policies governing women’s rights, the increasing degree of degrading speech about women used by politicians together underscores just how much closer we are  every day to a theocratic/right wing state like El Salvador. How far will we let things slide before the lives and health of ourselves and our daughters mean nothing?  And how long will we stand by while the “religious right” abuses women, whether they live here or in El Salvador?

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.

Analysis Human Rights

El Salvador Bill Would Put Those Found Guilty of Abortion Behind Bars for 30 to 50 Years

Kathy Bougher

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.

Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.

The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.

The bill’s major sponsor, Rep. Ricardo Andrés Velásquez Parker, explained in a television interview on July 11 that this was simply an administrative matter and “shouldn’t need any further discussion.”

Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”

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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.

In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.

Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”

During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.

“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.

“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”

As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?

International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:

[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.

The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.

The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.

Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”

“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.

In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”

ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.

The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”

bien vale un debate-la salud de las mujeres

Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.

“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.

At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”

Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”