El Salvador’s anti-abortion laws: ‘an aggressive, punitive attack on women’

Mirna Ramírez’s dream was a modest one: to raise a couple of children. She watched her first child, a boy, die at four months of a brain abnormality. Worried the same thing might happen again, she kept her second pregnancy quiet. But a month before she was due to give birth, she went into labour prematurely and her daughter fell into a latrine. The baby survived, but Ramírez was arrested for attempted murder and sentenced to 12-and-a-half years in jail.

The 48-year-old Salvadoran blinks back tears as she describes seeing photographs of her daughter learning to walk, and birthday celebrations she could never attend. “My life has been a failure,” she says.

Ramírez was convicted under anti-abortion laws so draconian that not only seeking to terminate a pregnancy but even suffering a miscarriage or complicated premature birth can put a woman behind bars for as long as 40 years under charges of aggravated murder. Pro-choice activists say El Salvador’s enforcement of anti-abortion legislation is harsh even among countries where the law comes down emphatically against terminations. It has created a culture of suspicion, they say, in which women are presumed guilty and reported by the very health professionals they turn to for help.

The atmosphere in the public health service has become pernicious. Doctors and staff fear that failure to report a suspicious case will cost them their jobs or have them charged with complicity. Many state hospitals are no longer a sanctuary but the last place a woman who has tried to abort or suffered an obstetric emergency can go, even if she is bleeding so badly she could die.

Activists put the number of women jailed on abortion-related charges at 49 — some for a procedure that millions of women worldwide consider their right, others following medical emergencies or miscarriage (the term in Spanish is “spontaneous abortion”). Other estimates give double that number of women imprisoned.

“Where is the criminal intent in miscarriage?” asks Dennis Muñoz, a lawyer working with rights groups to free women in prison on abortion charges in Central America’s smallest country. In a society that is reeling from violence between brutal street gangs, the harshness of the punishment seems particularly unjust to Muñoz. “You might as well be judged for sneezing,” he says.

Until about 20 years ago, El Salvador permitted abortion if the woman’s life was at risk, if foetal malformation made the baby’s life unviable or if the pregnancy was the result of rape. Despite the influence of the Catholic Church, which teaches that life begins at conception, private clinics offered semi-clandestine abortions — taboo but quietly tolerated, expensive but not exorbitant.

But following lobbying by anti-abortion groups, a new penal code took effect in 1998, outlawing abortion outright. Chile, Honduras and Nicaragua are among Latin American countries with similar bans, but El Salvador is unique in instituting what Dee Redwine, head of the Latin American programme at the Planned Parenthood Federation of America, a US abortion provider, calls “an aggressive, punitive attack on women… a witch-hunt is a very good way of putting it”.

Carmen Vásquez Aldana, a domestic worker who became pregnant after being raped at the age of 17, delivered her baby alone in an unlit room in her employer’s house. The baby died. Hours later, still bleeding profusely, she was taken to hospital, where she woke up handcuffed to the bed.

Vásquez was pardoned last year, after serving seven years of her 30-year sentence for aggravated murder. The ruling recognised “she was convicted on the basis of mere presumptions” and the sentence was “disproportionate, excessive, severe and unjust” — especially since the baby’s cause of death had never been established.

Where is the criminal intent in miscarriage? You might as well be judged for sneezing

Her release followed a campaign to free 17 women serving long sentences, spearheaded by Morena Herrera, El Salvador’s leading advocate for abortion law reform. Arguing that the women are victims rather than criminals, activists filed simultaneously for pardons for the entire group in April 2014, but only Vásquez’s suit was accepted. Ramírez, who had been allowed in the later years of her prison term to work outside the jail and to visit her family during the day, was freed for good behaviour. A pardon was denied on the grounds that she had almost finished her sentence. The other 15 suits were rejected and activists are still fighting to have these sentences commuted or reduced.

Even if appeals succeed, victory may be short-lived. In May, María Teresa Rivera, who had served four years of a 40-year sentence, was freed after the judge acknowledged errors in the case, but prosecutors are now appealing against the ruling.

Sitting on the plant-filled patio of her house, Herrera drinks black coffee and sucks on cigarette after cigarette. A former guerrilla fighter in El Salvador’s civil war between 1980 and 1992 and a mother of four daughters, she looks unshockable. But she shakes her head incredulously as she recalls the story of a middle-class friend who was so desperate for help after her daughter tried to abort and was bleeding profusely that she was willing to take her to a public hospital.

“I’d rather you were arrested than dead,” she recounts the friend telling her daughter. “I can get you out of jail, but not out of the cemetery.” The young woman eventually escaped punishment because she was taken to a private clinic.

Activists say each of the 17 women is guilty of nothing more than going into labour prematurely, without a midwife or doctor present, and often without having had any antenatal check-ups that could have detected gestational problems. They have to prove their innocence.

Ramírez’s baby was born at eight months. “I didn’t touch her. She just came out,” she says. After helping to rescue the baby, who was alive, a neighbour called the police. “They said I had her and threw her in [the latrine],” says Ramírez. When she was taken to hospital, it was in handcuffs in a police car — the start of a legal odyssey of more than a dozen years that ended in October 2014 when the Supreme Court approved her release. By that time, she had less than a month of her original sentence left to serve.

In a statement, the UN applauded Vásquez’s release, saying it “reverses an appallingly unfair sentence… but there are many more women imprisoned on similar charges”. It is time for El Salvador’s government to review the abortion ban “to end such injustices”, the statement urged. El Salvador’s justice ministry would not comment.

American pro-choice campaigners are watching the situation in El Salvador closely, as abortion rights, enshrined under the landmark Roe v Wade case in 1973, are being eroded in some US states. “Since 2011, we have seen more than 334 abortion restrictions enacted in 32 states — that’s huge,” says Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a Washington-based non-profit organisation that focuses on sexual and reproductive health.

The result of El Salvador’s ban is a gaping social divide between those who can afford an abortion in a private clinic where doctors feel no pressure to report their patients, and those forced to rely on the flourishing back-street abortion industry.

Misoprostol, an abortion-inducing drug, is readily available on the black market. The less well-off resort to caustic soda tablets or coathangers, doctors and activists say. With no medical follow-up, the third of El Salvador’s 6m people who live in poverty have the fewest options when things go wrong.

Camila — whose name has been changed to protect her identity — feels she got off lightly. Now 24, she was 15 when she found out she was pregnant by her 16-year-old boyfriend. “He looked on the internet, went to San Salvador and bought two pills for $80,” she says. “I don’t know what they were.” Within hours of taking the dose, she was haemorrhaging. Unable to confide in her mother, who still does not know she had an abortion — “she’d kill me” — she went to a friend’s house. “When I couldn’t stand it any more, I went to hospital.”

There she was grilled about what she had taken and who had helped her, but in the end, her age saved her from being reported by the hospital staff. Then, two years ago, Camila was raped by her father, and the nightmare loomed again. In the end, she did not become pregnant. “If I had been, my life would have been over,” she says.

“[Abortion] is more penalised than any crime,” says Delmi Ordóñez, who, like Ramírez, gave birth in a latrine. Doctors say some women deliver into toilets because of cervical incompetence. Bathed in blood, Ordóñez fainted after the birth, she says, waking up in hospital to find doctors demanding to know what she had done with her child. Because she had been using injected contraceptives, Ordóñez had not even known she was pregnant, although she already had a son. “They decided it was an abortion — no one knew, so I must have covered it up.” The baby, which Ordóñez never saw, was found dead in the latrine by firemen. A blow to its head was proof enough for the authorities that this was murder.

Once Ordóñez was out of danger, she was arrested, and spent the next 11 months in prison. The case against her was finally dismissed, but she still feels consumed by guilt, even five years after her release. “I practically felt I’d killed him because I didn’t take proper care of myself. I didn’t realise, I didn’t go to the doctor,” she says.

The abortion ban has widespread support in El Salvador, where machismo and religious faith run deep. A survey by the Latin American Observatory of Drug Policy and Public Opinion, a think-tank Asuntos del Sur, found Salvadoran support for abortion to be the lowest in the region — about half the level of surveyed countries overall — although support among young people was growing.

It took the dramatic case of Beatriz in 2013 to thrust the issue into the spotlight. The 22-year-old, identified only by that name, was denied an abortion by El Salvador’s Supreme Court, despite the fact that she suffered from lupus and doctors had warned the pregnancy was putting her life at risk.

The court refused on the basis that it was upholding the constitutional right to life from conception and that a woman’s human rights could not take precedence over those of her unborn child. That Beatriz’s baby also had a defect called anencephaly, in which parts of the brain do not develop, made no difference. Babies with the condition rarely survive more than a few hours.

The Inter-American Court of Human Rights urged the government to save Beatriz’s life. “In the end, she started to have contractions and they had to perform a caesarean,” Herrera recalls. The baby died within hours.

Beatriz’s ordeal prompted María Isabel Rodríguez, then El Salvador’s health minister, to call for a change to the law. She has called it a “crime” and an “injustice”.

They decided it was an abortion — no one knew, so I must have covered it up

In October, Lorena Peña, president of El Salvador’s Congress from the ruling FMLN party, referred to Beatriz’s case when she introduced a bill to decriminalise abortion if the mother’s life is at risk, if the pregnancy is the result of rape, if the baby’s life is not viable or in the case of under-age girls. “Here we are not the holy inquisition — this is the Salvadoran assembly in the 21st century,” Peña said. Her proposed amendment to the penal code would restore a right enshrined in Salvadoran law from the late 19th century until 1997, she said.

But Herrera expects the bill to run into tough opposition from the conservative Arena party. She has been called an apologist for what is considered by many Salvadorans to be a heinous crime. Even in the Ilopango women’s jail — where most of those convicted on abortion charges have been incarcerated — sympathy can be in short supply. Ramírez and Ordóñez say that during their time in prison they kept quiet for fear of being branded “baby killers”.

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Rosa (her name has been changed), a gynaecologist who quit the public health service, says that “many times” she refused to report suspected abortions and falsified her patients’ medical reports. Eventually, she switched to a private clinic, helping two to four women a month to abort, provided they were referred through people she knew. “If someone comes to me that I don’t know, I can’t help them. It makes me mad, but I can’t expose myself [to the risk] either,” she says — potentially six to 12 years in prison and the permanent revocation of her physician’s licence.

“You don’t know who you can trust. It’s very risky and I don’t think that’s going to change,” says Valentina (also not her real name). Despite being a health professional herself — she is a dentist — she did not know where to turn after suffering complications from taking misoprostol. She was referred to Rosa. Private abortions can cost as much as $3,500 and Rosa says she has colleagues who perform them as a sideline, with the proviso that patients do not know their names or see their faces.

The most “absurd” thing, Rosa says, is she knows that in theory the law protects her: it says doctors are not required to breach patient confidentiality. Another safe-abortion practitioner nicknamed “Dr Help”, who charges his patients between $100 and $1,000, depending on their ability to pay, adds: “I know my rights and obligations as a doctor. My job is to provide medical help. I’m not a policeman.”

This is the same point made by Muñoz, the lawyer. Talking fast and thumbing through his three-inch-thick copy of El Salvador’s Criminal Procedural Code, he points to the relevant articles that, he says, protect doctors — despite a requirement that hospitals report injuries sustained as the result of a suspected crime. One of his defendants, Carmelina Pérez, a Honduran, was given a 30-year prison sentence in 2014 after the doctor who reported her to the police gave evidence in court. Later that year, in an appeal, Muñoz successfully argued the doctor should have refused to testify under article 205, which establishes that patient confidentiality requires that doctors not testify against their patients. “This is now a legal precedent,” he says, triumphantly.

But Muñoz’s celebrations have been short-lived. Although Pérez was released and returned to Honduras, the court order freeing her has itself since been revoked. A judge has accepted an appeal by prosecutors to reopen the case. El Salvador may have to issue an international arrest warrant to get her back before a judge.

Herrera compares the case to that of Sonia Tábora, who was jailed in 2005 for 30 years after giving birth while working in a coffee field. According to activists, the baby was either born dead or died soon afterwards, and was buried in the field; Tábora, bleeding, fainted. Her case was reviewed after seven and a half years and she was freed. But that review was struck down. Tábora must go back in the dock even though she now has another small child.

There is no trace of the tough guerrilla as Herrera contemplates what could happen next. “I just don’t know what I’ll do if they convict her,” she says.