In 1997, the legislature in El Salvador was considering a vote to criminalize abortion under all circumstances. Morena Herrera, a feminist activist, “was facing the legislature, alone, trying to defend and justify why they should not change the law,” recalled Mariana Moisa, communications director at the Agrupación Ciudadana por la Despenalización del Aborto.
“They were transmitting live, and they shut off her microphone,” Moisa recalled.
The Salvadoran Legislative Assembly went on to ban abortion in all circumstances. In addition to making abortion illegal no matter what, this unjust law has been misapplied in cases of obstetric emergencies or miscarriages—leading to the imprisonment of dozens of women in the country because of pregnancy complications.
Now, however, the legislature is considering a bill from Vice President of the Legislative Assembly Lorena Peña that would decriminalize abortion in cases of rape or human trafficking, fetal non-viability, or to preserve the pregnant person’s health or life. It would also legalize abortion when the pregnancy results from rape or statutory rape of a minor, with the consent of the minor’s parent or guardian. Although it would not necessarily shield women from prosecution when the law is misapplied, it effectively returns the law to its pre-1997 state.
On February 27, the legislature’s Committee on Legislation and Constitutional Points, where the bill is being heard, convened a first-ever public hearing on abortion in response to the unexpected number of requests they received to present testimony. Twelve out of the seventeen organizations and individuals who testified spoke in support of decriminalization, including nationally and internationally recognized professionals in public health and law, representatives from two progressive Protestant churches, and a variety of activists.
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Marcela Zamora, a well-known Salvadoran filmmaker, shared her recently published essay, “I Aborted,” a rare public statement in El Salvador. She recounted how more than ten years earlier, while living in a country that allowed abortion, she experienced a pregnancy with complications that threatened her life. Although she was able to obtain an abortion, she questioned what would have happened to her if she had been in El Salvador at that time.
Moisa said she was struck by the contrast with the tenor of the hearing in 1997. “This time, in 2017, they invited us to the legislature, and our voices were heard. They made clear that the discussion would be based on scientific and legal information. Morena was there again, [this time] with a whole panorama of diverse voices who stood up alongside her to express their support for a possible reform,” she remembered.
This change didn’t come out of nowhere. Activists on the ground have been working for two decades to engage allies and elected officials on this issue—and in the last few months, that momentum has ramped up on a number of fronts.
Abortion as a Health Issue
Those speaking out in favor of the bill are, for the most part, concentrating on the exceptions to the ban it enshrines into law.
At a January forum organized by the Alliance for the Life and Health of Women—a coalition in which the Agrupación is a key player—members of the medical profession provided the medical and scientific justifications for the proposed change to the law.
Gynecologist Guillermo Ortiz, currently a senior adviser for Ipas and formerly chief of obstetrics at the Women’s Hospital in El Salvador, said that physicians who support the proposal for reform “are in favor of saving lives. But there are conditions that make [abortion] necessary, and we are talking about those situations so that exceptions can exist within the law.”
As part of that convening of medical experts, seven nationally and internationally recognized OB-GYNs signed off on a memo to the Committee on Legislation and Constitutional Points. The memo, viewed by Rewire, says the society must “generate legal instruments that guarantee protection for [patients’] lives,” in at least the four cases defined in the proposed reform.
The memo cited the Ethics Committee of the International Federation of Gynecologists and Obstetricians: “There exists a broad consensus … that abortion is ethically justifiable when it is carried out for medical reasons to protect the life and health” of the pregnant person.
“It is fundamental to remember that the global experience shows that the frequency of abortion does not depend on legislation and that the rates of abortion do not increase with more liberal legislation,” the memo continued. “To the contrary, they can diminish, if at the same time other measures are adopted,” such as information and free access to highly effective contraception.
As part of its scrutiny of the proposal, the legislature had requested an opinion from the El Salvador Health Ministry.
In a February 21 symposium on health and bioethics organized by the ministry, El Salvador Minister of Health Dr. Violeta Menjivar responded, “As the Ministry of Health, we consider it appropriate that the legislature and society together participate in a reflection and deliberation on the harm the absolute prohibition on abortion causes to the health of Salvadoran women.”
She supported the move to reform the law, noting that the United Nations had made a request in January 2015 that El Salvador repeal its broad criminalization of abortion under all circumstances.
At the February 27 hearing, Sofia Villalta, a nationally recognized gynecologist with more than 40 years of professional experience, testified on the causes of unwanted pregnancies and emphasized the underlying role of the “subordination of women to masculine power.” She cited a study within the Salvadoran society of gynecologists which showed that 80 percent of them want to return to the prior legislation allowing abortion.
The Consequences of Criminalization
At the February 21 forum organized by the Ministry of Health, Dr. Virginia Rodriguez of the National Committee on Bioethics in El Salvador posed the question, “If a woman has rights from conception, at what point does she lose her rights? When do the rights of the fetus in development take priority over her rights to life?”
Rodriguez was referencing a February 15 decision from the El Salvador Supreme Court, when it ruled on a 2007 case involving conflicting laws over when life begins and when the State must protect that life.
Although the Court agreed that the the El Salvador Constitution declares life as beginning at “conception,” it said “it is necessary to weigh each case.” It also stated that the idea of fetal rights does not “claim a duty of absolute and unconditional protection of life in gestation.”
Alberto Romero of the Agrupación Ciudadana and the Movement for Secular Culture wrote in a booklet published by the Salvadoran Foundation for the Study of the Application of Law, FESPAD, that the Court’s decision “permits a resolution of the vacuum that exists in the current legislation, which does not establish legal mechanisms to resolve the collision of rights that takes place between the [fetus] and the woman who is pregnant.”
On the day of the hearing, the nine-member National Committee on Bioethics in El Salvador—which also includes Morena Herrera and Margarita Rivas of the Agrupación—published a paid ad in La Prensa Gráfica, noting the ways in which existing law infringes on the rights of pregnant people and women in general.
The ad stated that the existing law promotes gender discrimination against women; prevents women with high-risk pregnancies or obstetric complications from accessing medical treatment in accordance with existing scientific knowledge; and has provoked cases of discrimination against women within the justice system based on economic conditions, effectively criminalizing poverty.
The law has also, the committee said, generated legal conflicts whereby physicians’ responsibilities to protect doctor-patient confidentiality conflict with their mandates under the anti-abortion laws. Overall, the ad said, the broad criminalization of abortion violates the rights of pregnant people by treating their constitutional rights as equal to or subordinate to those of the fetus.
Responding to Questions of Faith
The Alliance for the Life and Health of Women also organized a series of events from February 17 through 21 to address the realities and contradictions around religion in El Salvador.
“The Alliance knew it was important to address religious concerns in a society as deeply religious as El Salvador, where almost 99 percent of the population professes a belief in God and about 91 percent belong to a religion,” said Romero, who researches secularism and social issues in El Salvador.
“For many people, both legislators and citizens in general, it’s difficult to reconcile [many religions’] mandate against abortion with the rational arguments for permitting it. It’s important to present a variety of interpretations that do not condemn and criminalize abortion,” he said.
Advocates noted that different religions take varied stances on abortion. “The Anglican Church here in El Salvador talks about abortion not being a theological issue, but a pastoral one of accompaniment of women,” said Alejandra Burgos, a member of the Agrupación and a progressive feminist theologian.
Indeed, during the February 27 hearing, Martin Barahona of the Anglican Church in El Salvador explained that “in this case the Anglican bishops consider that the only people who have the right to decide are the women who are pregnant.”
“Even Pope Francis, who maintains that abortion is a sin, mandates priests to have compassion and accompany women,” Burgos pointed out.
“It’s necessary in this society to provide alternatives to people who are living with these contradictions; to show that a religious believer can also support the right [to] interrupt a pregnancy,” she concluded.
In one talk, María Lopez Vigil, a Cuban-Nicaraguan theologian, author, and editor of the progressive Nicaraguan magazine Envio, proposed looking at abortion in a broader perspective, considering the realities of the country.
“Consider the commandment ‘do not kill’ with situational ethics. There is nothing more abortive than poverty,” she said.
In arguing for a compassionate, merciful view of God, she asked the audience of more than 300—many of whom had not attended Alliance events in the past—if it was “the will of a compassionate God that women suffer and die for ‘not having enough faith’ when they experience obstetric emergencies? Is it the will of a compassionate God to mandate that young girls who have been raped carry to term resulting pregnancies?”
She challenged structural injustices and spoke of “abortive societies,” in which countries obligate pregnant girls and adolescents to give birth, but after the birth do nothing to help them support and raise their children. That, she said, is a “structural sin.”
Responses to the campaign for decriminalization are diverse.
After the various hearings and forums, Legislative Representative Juan Valiente of the right-wing ARENA party spoke on a TV talk show supporting debate on the reform, going against his party’s stance.
In addition, he tweeted, “I’m against abortion, but I recognize that there is a collision of rights and it’s important to investigate and debate. I’m not afraid.” And to another constituent opposed to decriminalization, he posted, “I prefer to lose your vote than my conscience.”
Even with these sea changes in some public opinions and attitudes, there is still strong religious opposition.
A group of Catholic churches initiated “40 days of prayer” leading up to Easter Sunday with the goal of “ending abortion in the world and in the country” in a war “between good and bad.” Regarding the Ministry of Health position, prayer campaign leader Karla de Lacayo told La Prensa Gráfica, “it’s a lie” that women’s lives are at risk.
“With [medical] advances now, there is no way the woman is going to die. And, if it’s true, if the child dies in the process, then that’s what God wanted,” de Lacayo said.
In the legislature itself, there remains the fact that supporters of the reform must form coalitions in order to get the majority vote necessary to first pass the measure out of committee, and then win a majority of votes in the full body. Neither the right-wing ARENA party nor the left-leaning FMLN has a numerical majority in the committee or the full legislature.
Supporters hope for a positive resolution in the next few weeks, before the next election cycle gets underway. At that point, they say, chances of any substantive vote on any matter disappear.
As Sara Garcia, coordinator for the Agrupación, told Rewire, “This is a historic moment. International organizations such as the UN are speaking out. More and more social movements are making pronouncements. Professional medical organizations and the universities declare their support.”
“The government can’t keep ignoring the realities of women in this country,” she said.