El Salvador’s Total Ban on Abortion: An Analysis of Structural Violations Against Women’s Rights
El Salvador – the smallest country in the Central American region – over the last decade has become infamous for being one of the most violent countries out of a war zone, affected by severe security issues related to gang violence; but a lesser known fact is that El Salvador is one of the few remaining countries to uphold very strict legislation against abortion, and where a miscarriage can lead to a criminal conviction.
This was the case for Evelyn Hernández, a student from a poor family in Cojutepeque, a small town outside the capital city. At 18 years old, she became pregnant after being raped several times by a member of a local gang; and in 2016, her mother found her passed out and covered in blood outside her family home’s latrine. She had suffered a stillbirth, and when she was taken to the hospital to seek medical attention, she was met by the police. An autopsy revealed that the fetus had died of aspiration pneumonia, but Hernández was charged with murder. She was taken to prison to await her trial and was later sentenced with 30 years for aggravated murder, because according to prosecutors she had not sought prenatal care.1
She would ultimately spend almost three years in prison, until her fist sentenced was overturned. However, a second trial was conducted, as the Prosecution Office argued that Hernandez’ decision to not seek prenatal care meant that she did not want the baby, and thus it was her intention to kill it. She was ultimately acquitted on August 2019, after an outpour of national and international support from human rights and citizen organizations.
The country’s stance against abortion is one of the harshest across the globe, and many have qualified the situation as a dystopian application of a draconian law. And as if a total ban on abortion wasn’t problematic enough, in El Salvador, despite the fact that the Penal Code establishes a punishment of 2 to eight years for abortion, and 6 to 12 years in aggravated cases; most of the times, prosecutors typify the crime as homicide or aggravated homicide, which carries up to a 50 year sentence.2 And to add further insult to injury, in most cases provisional detention is imposed, explaining why many women spend years in overcrowded prisons -another big issue in the country- waiting for trial.
An investigation conducted by Agrupación Ciudadana para la Despenalización del Aborto Terapéutico, Ético y Eugenésico found that 129 women were convicted for abortion between 2000 and 2011, and also found the following statistics3:
68.22% of the women were between the ages of 18 and 25.
6.98% were illiterate, 40.31% had some primary school education, 11.63% had high school degrees, and 4.65% had completed higher education (technical or university studies).
51.16% of the women were not earning any income, and 31.78% had very low-paying jobs.
57.36% of the accusations came from health professionals assisting the women and 22.48% from relatives and neighbors.
In 49% of the cases, the accusations had no basis and their files were closed.
In 43.41% of the cases, provisional detention was imposed, meaning that the women were imprisoned while their proceedings were being carried out.
In 51.94% of the cases, the women were represented by public defenders.
The findings made by this study concluded that “a majority of these women came from an impoverished background, and that they were women who had been excluded from educational opportunities, access to basic health care and conditions that would allow them to change their status; and as a result these women were extremely vulnerable and lacked the necessary tools to confront the State’s authority.”
The study also found that the criminal convictions are given in a context where women have experienced an obstetrics emergency that leads to a loss of fetus, and do not understand the legal risk or have access to a private health care facility that will not report them, and cannot find adequate legal defense. Another connected issue is that because the majority of complaints are coming from medical personnel, women who experience obstetric emergencies or need post abortion care, may be discouraged to seek medical support. Another important finding the study highlights as problematic is the fact that most of the complaints are without basis, and that this conduct violates medical ethics, and the principle of beneficence by violating professional confidentiality.
The study details that El Salvador´s current abortion legal framework results in human rights violations in three different areas: health care, due process and application of the law, and imprisonment. Finally they note the lack of reliable information available on a national level, and hence the difficulty to measure the situation’s true impact on women; and also leaves many questions unanswered regarding the number if women without medical attention for pregnancy related illnesses, the number of suicides linked to cases of pregnancy as a result of rape, the number of women who are forced to carry out pregnancies that involve malformations incompatible with life outside the womb, or how many women seek post abortion care from the public health system.
In most Latin American countries, religiousness is almost a given, as the Catholic and Christian faith remains predominant across the region, and this has undoubtedly influenced legislation and social perception regarding delicate matters such as reproductive rights, sexual preferences and same sex marriage; and although in most circumstances, equating religion to a particular stance towards abortion would be unfair and inaccurate, in the context of El Salvador’s debate on abortion, religion and moral values are often cited as arguments to uphold the current legal framework.
One of the strongest conservative voices in the national discourse comes from the president of the “Si a la Vida” (Yes to Life) Foundation, Regina de Cardenal. Through her newspaper columns she has declared that “Cases like Manuela’s4 are being used by the Inter-American Court of Human Rights as a tool to pressure the country into legalizing the business of abortion, and that in El Salvador there isn’t a serious media outlet that has published the repeated lies from the international propaganda media that states that El Salvador hates and persecutes women; that hundreds of poor women have been incarcerated and punished with 40 years in prison for having spontaneous miscarriages, obstetric emergencies or births outside a hospital. This is absurd, because there are no women in prison due to abortion, since the punishment is from 2 to 8 years in prison, and judges give them substitute measures instead of incarceration”. She further commented that “Salvadorans are tired of the lack of respect from actors, ambassadors, foreign interference, and lying foreign journalists that accuse the nation of having a medieval and draconian law, when in fact our legislation should be a model to the rest of the world, as it is one of the few that protects human rights for everybody.”5
In contrast to the pro-life position, it is important to note that the debate on abortion in El Salvador has broadened over the last decade, as many citizen-led organizations and even political actors have come out and expressed their support for the legalization of abortion in certain cases, specifically those related to rape and those where the fetus is inviable or puts the mother’s life at risk.
Lorena Peña, – a left-wing legislator whose party proposed a law with broader exceptions in 2016-, stated that “there is less fundamentalism now, and the debate has been more open”, she also added that “some right-wing legislators are afraid that supporting these changes would distance them from the wealthy and conservative population that supports them (…) but that nothing is written in stone and change can happen.”6
Johnny Wright Sol, – a legislator who left the conservative right-wing party -, has declared that the topic “is a large gray area and it needs to be discussed”; he proposed a law that allows abortion when the mother’s health is at risk and in rape cases. He stated that “this is a conservative approach and it is a minimal standard in comparison to the modern stance of the XXI century” he further argued that resistance to changing the current law “responds to a violent society, sexism and poverty (…) and that as a politician calling yourself pro-life is an easy escape, as it is a way to avoid analyzing the other issues causing a lot of our problems.”7
In March 2017, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) recommended El Salvador to “review article 133 of the Penal Code to legalize abortion, at least in cases of rape, incest, threats to the life and/or health of the pregnant woman, or severe fetal impairment”. The Committee also reiterated its previous concluding observations and encouraged the State party to: “(a) Introduce a moratorium on the enforcement of the current law and review the detention of women for abortion-related offenses, with the aim of ensuring their release and upholding the presumption of innocence and due process in abortion-related proceedings; (b) Ensure that professional secrecy for all health personnel and confidentiality for patients are guaranteed.”8
In looking at the bigger picture in a country like El Salvador, reproductive rights or abortion are not placed at the top of its priorities. However, from all the information above, it is important to note that the issue does not lie only in whether or not abortion should be legalized. This problem reflects a larger problem in Salvadoran society where women lack the tools to reach their potential. Although the dialogue and revision of the abortion ban is important, it is also crucial to address the underlying causes that put women in this situation in the first place.
This entails a multi-level and integral policy, that considers areas like security, to prevent and target the raping of women by gang members in vulnerable communities, and better enforcement of laws that protect and process rape cases across the nation. It should also include the strengthening of both state institutions and NGOs that promote women’s rights to include them in the national discourse regarding policies and supporting their activities as a part of a national strategy. Access to justice for women should be another essential element to promote, to ensure that women have access to adequate legal counseling independent of their economic or social background; this would mean encouraging the education of public defenders on women’s and international human right standards. Furthermore, educating the police forces and judicial system on the correct application of the current legislation could have a positive impact, as this would reduce the number of unjust incarcerations, the wrongful typification of crimes, and the lack of proportionality in convictions.
Access to health care is another issue where improvement can be made, as the current situation fails women who do not have access to expensive private hospitals, and those who live outside of the bigger cities. The behavior of health care professionals who report women without basis -and put them at risk of being incarcerated for many years- also impacts the decision of women in vulnerable situations to seek medical assistance, thus putting their life at risk. Further education and sensibility training regarding the ethical treatment of obstetric emergencies, professional confidentiality and medical liability and duties regarding the current legal framework, could improve the relationship between of pregnant women and the health care system, especially in rural areas. It is also important to include mental health and counseling as an option for women, and to make that part of a nation-wide policy.
As controversial as it may seem for a conservative country, it is also important to include sexual education in the national pensum, in order to prevent not only teenage pregnancies, but to provide young people with the tools and knowledge to protect their bodies from potential reproductive illnesses, unwanted pregnancies and sexually transmitted diseases. This national pensum should also include education on women’s rights to further awareness and promote the reduction of inequality through knowledge. More broadly, it is also important to establish policies that promote women’s education especially in rural areas, ensuring they can stay in school and have access to more opportunities in the work field.
Lastly, the legal framework and processes for adoption should be updated and made more efficient so that it can be an alternative for women pregnant as a result of rape. At present, an adoption can cost up to USD $12,000 and take anywhere from two to four years, or even longer depending on the particular case and child characteristics.9 Also, the conditions of national institutions responsible for the protection of orphaned and abandoned children need to be improved in order to even consider this as a viable choice for women in this situation. In 2009, the newly appointed Director of the Salvadoran Institute for Children and Adolescents (ISNA) declared to be “terrified by the state of the government-run centers”, which have become infamous for numerous deaths in their facilities. He added to have also found that “the personnel mistreat the children, the hygiene and infrastructure conditions are deplorable, and there is a lack of educational programs and proper registry for infants under the care of these institutions.”
Ultimately, if consensus cannot be reached on abortion on all cases, it is critical to at least review exceptions in cases where the mother life is at risk, where the fetus is inviable and where incest, rape and violence have occurred. Furthermore, it is essential that Salvadoran citizens – whether they are pro-life or pro-abortion – realize that the discussion goes further than determining if a fetus is a person and abortion is a crime; and that they recognize that there are a lot of structural issues stunting the potential of women in the country, and that as such it is important to collectively demand from the government the creation of integral policies that promote women’s rights at a larger scale, to ensure that all women, but specially young women in vulnerable situations, have the chance to survive and thrive in a country like El Salvador for generations to come.
Sources
1 Merelli, Analisa.”This dystopian trial in El Salvador is what a total ban on abortion looks like”. Quartz. August 20th, 2019. Available from: https://qz.com/1688556/this-trial-in-el-salvador-is-what-a-total-abortion-ban-looks-like/. Last consulted on September 13th, 2020.
2 Organization of American States Official Website. Penal Code of El Salvador. Available from: https://www.oas.org/dil/esp/Codigo_Penal_El_Salvador.pdf. Last consulted on September 13th, 2020.
3 Center for Reproductive Rights and Citizen’s Association for Decriminalization of Therapeutic Ethical and Eugenic Abortion (Agrupación Ciudadana). “Marginalized, Persecuted and Imprisoned, The effects of El Salvador´s Total Criminalization of Abortion”. United States, 2014. Available from: https://reproductiverights.org/sites/default/files/documents/El-Salvador-CriminalizationOfAbortion-Report.pdf. Last consulted on September 13th, 2020.
4 In 2017, the Inter-American Court of Human Rights, admitted the case of Manuela, a Salvadoran woman that was incarcerated and condemned to 30 years in prison for having an obstetric emergency, and that later died due to a Hodgkins linfoma that was left untreated while she was in prison. The Court established in its report that it admitted the case after determining that El Salvador did not provide access to justice for Manuela and her family, citing failing to provide Manuela with adequate legal counsel for her defense. Inter-American Court of Human Rights Report N.29/17 Petition 424-12. Admissibility. Manuela and Family. El Salvador. March 18th, 2017. Available from: https://reproductiverights.org/sites/default/files/Manuela-IACHR-Report.pdf. Last consulted on September 13th, 2020.
5 De Cardenal, Julia Regina. “Las mentiras en medio de la tragedia”. El Diario de Hoy. June 12th, 2020. Available from: https://www.elsalvador.com/opinion/editoriales/aborto-ilegal/723493/2020/. Last consulted on September 13th, 2020.
6 Malkin, Elisabeth. “Salvadoreñas luchan por acabar con la prohibición del aborto en su país”. The New York Times. April 9th, 2018. Available from: https://www.nytimes.com/es/2018/04/09/espanol/america-latina/aborto-prohibicion-el-salvador.html. Last consulted on September 13th, 2020.
7 Op cit.
8 Committee on the Elimination of Discrimination against Women. Concluding observations on the combined eighth and ninth periodic reports of El Salvador. CEDAW/C/SLV/CO/8-9. March 3rd, 2017. Available from: https://www.reproductiverights.org/sites/default/files/documents/CEDAW_C_SLV_CO_8-9_26044_E.pdf. Last consulted on September 13th, 2020.
9 United States Department of State. Bureau of Consular Affairs. Intercountry Adoption Information for El Salvador. Available from: https://travel.state.gov/content/travel/en/Intercountry-Adoption/Intercountry-Adoption-Country-Information/ElSalvador.html. Last updated: June 30th, 2018.
10 Aguilar, Jimena. “Se me paran los pelos con lo que encontré en el ISNA”. Periódico El Faro. October 23rd, 2009. Available from: https://elfaro.net/es/200910/noticias/165/Se-me-paran-los-pelos-con-lo-que-encontr%C3%A9-en-el-ISNA.htm. Last consulted on September 13th, 2020.
About the author:
Aida Portillo is a lawyer born in El Salvador and currently residing in Asia. She holds a Bachelor in Law, an LLM, and a Masters in International Law and Human Rights obtained in El Salvador, South Korea and Costa Rica respectively. Her international background and professional experience have allowed her to have a deep understanding and a unique perspective on Human Rights and International Affairs. Her current research work focuses on human rights and sustainable development for developing countries.
