From hospital to jail: the impact on women of El Salvador’s total criminalization of abortion

This article is a translation of excerpts from this report, which was published in Spanish in El Salvador in February 2013. It also includes excerpts from an interview with one of the members of the El Salvador Coalition, published by AWID in September 2014.

Introduction: a law that promotes the systematic violation of women’s human rights

Since 1999, the Constitution of the Republic of El Salvador has considered a zygote to be a human person. This would not be so serious if it only reflected the imposition by the State of a religious view of the world on citizens. Urgent consideration of this as a problem might not be necessary if, in practice, it did not have complex juridical implications that have led to the systematic violation of women’s human rights.

The criminalization of abortion arising from the Constitution, which is a total ban on abortion even if a woman’s life is at serious risk, has deprived all women of their freedom to decide about their own bodies. This loss of freedom, however, is equally great for pregnant women who develop pregnancy-related complications, as their pregnancies may also not be terminated, even to save their lives. We may ask ourselves in such cases whose freedom is being respected if a woman faces serious risks to her health and to her life from a complicated pregnancy, and she is not allowed to ask that her life should be saved rather than continue with the pregnancy. In El Salvador, in these cases, women are considered to be morally incapable of making such a decision, which denies them their status as human beings and violates their right to life — as granted in the Constitution of El Salvador, Article 2.

This problem does not affect all social sectors equally, however. Its greatest impact is experienced by working class women and those living in poverty, with a strong negative impact on their families, and especially young women living in poverty,who are usually poorly educated. Thus, it becomes a question of social justice as well. It also violates the right of legal certainty,^* which is granted in Article 1 of the Constitution of El Salvador, and which is also related to social justice.

It is women from these socioeconomic sectors who, suffering from serious bleeding as a result of an unsafe abortion or a miscarriage and having no skilled assistance, go to a public hospital seeking emergency medical attention. Along with medical care, however, they are confronted with being accused of a crime and are forced to endure the presence of law enforcement officers guarding them as they lie on the emergency room stretcher. In other words, they are treated as criminals. While initially they may be prosecuted for an illegal abortion, even in cases of miscarriage, they may later be found guilty of aggravated homicide, and sentenced to anything from 30 to 50 years in jail.

We decided to carry out research in El Salvador covering the years 2000–2010 and the first half of 2011, to find out how many cases there were of women in this situation and what had happened to them, in order to take relevant action.

Research methodology

The research was carried out during 2011, in all Courts of Instruction and Criminal Courts in El Salvador. These were visited by a female attorney, who was in charge of the research, who requested access to the files of any woman who had been prosecuted for abortion or for aggravated homicide in relation to the killing or attempted killing of an embryo or fetus.

A matrix containing the profiles of the prosecuted women, as well as details of the judicial process, was developed with the information obtained from records of court proceedings. This allowed for the exact identification of each case with a file number and meant the data were reliable.

In order to complete the information obtained in this way, a request was made to the Directorate of Operations and Services Centre of the National Civil Police, to obtain their intervention record on cases of abortion and aggravated homicide. Two databases were provided, containing the following information:

•	abortion cases known as a result of charges being laid, investigation and arrest, during the period 2007–2011, and
•	cases of women who committed illegal acts against their children during the period 2001–2011.

However, not all the sources had information available for all the years covered.

Further research was carried out in the country’s 20 Juvenile Courts, for information on those younger than 18. Although we gave the necessary guarantees that the identity of the minors would be kept confidential, seven Juvenile Courts considered that granting access to the files would violate the guarantee that no prosecuted minor would be identified. They thus denied access to the information. The other 13 Juvenile Courts provided the information requested. In order to have complete records, we asked the Administrative System Unit of the El Salvador Supreme Court to provide statistics on cases of abortion and aggravated homicide as described above, that had been presented before Juvenile Courts in the country in 2000–2011. The data provided covered the period 2004–2011, and made it possible to estimate the number of minors prosecuted for abortion or related offences in the whole period. The cases were compiled into one list so as to remove duplications.

Women and adolescent girls prosecuted for abortion or homicide

For the years 2000–2011, we obtained records for 129 women who were prosecuted for abortion or aggravated homicide, when the fetal deaths occurred in the last months of the pregnancy.

This number represents a very small proportion of the number of women who undergo an unsafe abortion in El Salvador every year, let alone those who have a miscarriage. Based on research by the Guttmacher Institute and the International Family Planning Federation Western Hemisphere Region, and on the rate for Central America as a whole,^1,2 the rate of unsafe abortions in El Salvador is about 25 per 1,000 women of childbearing age (aged 15–44). Considering the total female population of childbearing age,^* it can be estimated that 35,089 unsafe abortions take place per year.

These estimates do not include deaths from unsafe abortion, which would have been recorded as maternal deaths, for which there do not appear to be any firm disaggregated data.

Another effect of this restrictive legislation is the suicide rate among pregnant women which, according to the Maternal Death Surveillance System of the Ministry of Health, represents the third largest cause of maternal deaths in 2011, after hypertensive disorders and obstetric haemorrhage. It can be postulated that the lack of alternatives in the case of an unwanted pregnancy may be leading many women to commit suicide.

Among adolescent girls aged 10–19, according to the Ministry of Health (MINSAL), the first cause of death was suicide, and in half these cases, the girl was pregnant. It is not unreasonable to correlate this with the high rates of rape and sexual abuse that adolescent girls experience in the country, as evidenced by the fact that in 2011, MINSAL provided care to 26,662 children and adolescent girls who became pregnant as a result of sexual abuse.

The profile of prosecuted women

Of the accused women, 43.4% were aged 21–25 years, 24.8% were aged 18–20 and 16.3% were aged 26–30. Thus, some 85% were women younger than 30.

These women had very low levels of education: 46.3% were illiterate or had at most finished two years of primary school. Only 25.6% had attended secondary school, a technical school or university.

The women’s relatively low level of education may be a factor or even play a key role in what happens to them, as they may lack information about reproduction processes and how to prevent unwanted pregnancy, and also what to do in case of obstetric risk in advanced pregnancy. The lack of legal information and knowledge about their rights as patients also makes them vulnerable if they are accused of a criminal act.

Most of the women (73.6%) who were reported to the Instruction Courts, accused of illegal abortion or related offences, were single.

Just over half of them (51.2%) had no income and were either unwaged housewives (38%) or students (13.2%). Among those with jobs, 28.7% received very low pay, possibly below the minimum wage. They were domestic workers (18.6%), employees at shops or restaurants (7.8%), farm workers (2.3%), or self-employed (3.1%) – e.g. street vendors or seamstresses. Only 6.2% had a more skilled job in institutions or based on higher education. Finally, 1.6% were financially dependent on money sent to them by relatives working abroad.

The lack of income or very low income possibly played a role in how their pregnancy developed and why it was ended and may also have affected their ability to afford legal representation, especially in cases where the Public Defender’s performance may have been unsatisfactory.

Only 23 of the women were primiparous, and they were predominantly young and single; these were likely to have been unwanted and unplanned pregnancies, within a relationship that was not stable or wanted, complicated by inexperience and being poorly informed. Seventy of the women had children: 55 had had 1–2 children, and 20 had had 3–7 children. We can assume these women did not consider themselves to be in a position to raise more children, or they had had a miscarriage due to obstetric complications. There was no information about the reproductive histories of 31 of the women.

Women living in poverty in El Salvador who are in the last months of their pregnancy often face barriers in accessing obstetric care when they have symptoms, which may result in an unassisted pre-term birth. When this happens, they have to be transported from their community to a public hospital in precarious transport conditions.

Generally speaking, these profiles revealed great social vulnerability. A review of the brief information available about the housing conditions and family situation of the women revealed situations of severe poverty and marginalization, housing with poor hygienic conditions, no running water, and in some cases even latrines were not available. The reports of how those women from remote communities were moved from their communities to a health care centre show that in some cases this had to be done using a hammock, due to a lack of vehicles or because vehicles could not reach the house. Also the household environments described frequently reveal the breakdown of familial relationships, and family members with physical and/or mental disabilities.

Thus, we have learned that it is the poorest and most marginalized women who were the ones prosecuted for illegal, unsafe abortions, and those among them who said they had had a miscarriage were disbelieved and prosecuted anyway.

Analysis of the charges and legal proceedings

When we compared the information in the different sources of data on the women who were prosecuted against the records of the National Civil Police on women under investigation for alleged abortions or fetal deaths due to aggravated homicide, we found that only 50% of the cases had ever been brought to trial; the rest were not prosecuted and the women were released due to the lack of sufficient evidence to press charges against them.

Interim detention (detention between being charged and the trial) was imposed during the initial proceedings in 43.4% of the cases, especially in the cases of the 44 women accused of second-degree homicide or aggravated homicide; however, 12 of the women prosecuted for abortion also received interim detention.

Measures serving as a substitute for imprisonment, such as provisional detention, were applied in 45.7% of the cases, mainly to women prosecuted for abortion. We must keep in mind, however, that in 56 of the cases where women received provisional detention, they went straight from their hospital bed to jail, and spent approximately six months in jail before they received a final judgment or were acquitted.

The highest percentage of formal complaints against the women (57.4%) came from staff in public hospitals and from the Salvadorian Social Security Institute (ISSS). Our analysis verified that in most cases employers, relatives or neighbours would contact the police or medical staff when a woman needed assistance or to receive medical care. It was afterwards that the police officers or medical staff, who first had contact with the woman, later reported her to the police or to the Attorney General of the Republic.

There were 25 public health care centres that made a total of 74 accusations against women with suspected illegal abortions, during the 12 years analyzed. In some years, this was a high proportion of the total; for example, 82.4% of the accusations against women in 2000 were by public hospitals. Except in the years 2002, 2005, 2009 and 2011, this proportion was never less than 50%. It is worth pointing out that there were no accusations at all made by private hospitals, health care centers, or physicians. This could be either because no case of pregnancy termination that might have been considered a crime was attended by them, or, more likely, because it is not in the interests of private health care facilities to report women who pay for their services. If the latter is the case, it exposes the flagrant discrimination involved against those women who cannot afford private health care, even when suffering from pregnancy-related complications, let alone unsafe abortion complications.

Fear of being reported to the justice system may have been one of the reasons why women with complications related to miscarriages or induced abortions, as well as with obstetric problems during childbirth, who were not assisted by health professionals or midwives, were afraid of attending public hospitals for assistance. They may have had no confidence that the health staff would observe due professional confidentiality, and this may have had serious consequences for their health.

Lastly, public defenders rather than private solicitors were mostly used by those women with low or no income.

Analysis of the judgments and sentences

Our analysis of the judgments and sentences, in cases where women were prosecuted for abortion or aggravated homicide, identified 49 cases where sentence was passed. These included 23 convictions for abortion, of which 10 were tried without a jury. The other 26 were convictions for homicide, of which 4 were for attempted homicide, 3 were for manslaughter and 19 were for aggravated homicide. Sixty-seven cases were dismissed or the woman was acquitted and 9 cases were default judgment, that is, by an administrative act, not in a trial. In 4 cases, there was no information available about the sentences.

In all, 38% of the prosecuted women were convicted, of which 7.8% were resolved by summary trial, a situation in which the defendant pleads guilty in exchange for substitutive measures to the application of the sentence, that is, in place of being imprisoned.

10.1% of the women were convicted of illegal abortion and sentenced to serve three years, the minimum penalty for this crime. In almost all of these cases, substitutive measures were applied so that they did not have to serve the time in jail. The most serious cases, representing 20.2% of the women who were accused, had the classification of the crime they were accused of changed to homicide (including attempted homicide, manslaughter and aggravated homicide). In most of these cases, the woman had had a miscarriage in the last months of pregnancy, and the baby had died of different causes, but the women were accused of deliberately killing it. Of these, the majority received sentences of 30–35 years imprisonment, while 2.3% received sentences of six months to three years (for involuntary manslaughter) and 3.1% received prison sentences of 6–15 years (for premeditated manslaughter). Sentences for homicide are not eligible to receive substitutive measures in place of prison.

It was the younger women, especially those between the ages of 18 and 20 and 30 to 35, who were most frequently convicted of both illegal abortion and aggravated homicide. In contrast, none of the women aged 36–45 were convicted.

Evolution of the criminal law on abortion

The 1973 legislation on abortion

The 1973 criminal legislation was implemented with what could be described as relatively repressive tolerance. This situation dramatically changed with the 1998 legislation, which brought in a total ban on abortion. The legislation prior to 1973, in contrast, was quite permissive.

Under the 1973 legislation, which introduced the first extensive regulations, induced abortion was considered a crime and classified as punishable. The different aspects of abortion covered were as follows:

•	self-induced or procured abortion, Art. 161
•	consent to abortion, Art. 162.
•	abortion without consent, Art. 163.
•	aggravated abortion, Art. 164.
•	abortion under extenuating circumstances, Art. 165.
•	abortion with fatal consequences, Art. 166.
•	accidental abortion, Art. 167.
•	non-intentional abortion, Art. 168.
•	non-punishable abortion, Art. 169.

This legislation was based on a system of “indications” – that is, grounds for abortion, common in comparative law. It established exactly what was meant by “abortion” in Article 161, Section 2, which read:

“Abortion should be understood as the destruction or annihilation of the products of conception at any moment during the pregnancy before birth begins.”

Abortion was considered a “less serious” crime, punished with a sentence of 1–3 years in jail. There was no interim detention of the accused prior to a court hearing, and if convicted, they did not go to jail but received other substitutive punishments.

Abortion was considered to have happened under extenuating circumstances when it was done by a “woman of good repute” to preserve her reputation. Article 165 read:

“Abortion is particularly extenuated if a woman of good repute, to preserve her reputation and before knowledge of her pregnancy has been made public, self-induces the abortion or gives her consent for someone else to induce it.”

Abortion was not considered punishable under certain extreme conditions affecting women’s rights.

Article 169 said that the following were also not punishable:

•	Unintentional self-induced abortion on the part of the pregnant woman, or an unintended attempt to cause herself an abortion.
•	Abortion performed in order to save the woman’s life, in the absence of any other means to do so, carried out with the woman’s consent and based on a medical report. If the woman is a minor, incapacitated or unable to give consent, the consent of her spouse, legal guardian or close family member shall be required.
•	Abortion performed when the pregnancy is presumed to be the consequence of the crime of rape or sexual intercourse with a minor, and the abortion is performed with the woman’s consent.
•	Abortion performed with the woman’s consent, when the purpose is to avoid a serious foreseeable deformity of the product of conception.

Restrictive reforms to the abortion law in the revised Criminal Code in 1997

With the Peace Accords of 1992, the prospect of increased public freedoms in the country looked optimistic. There was a Constitutional reform that created new institutions to protect human rights; human rights treaties in agreement with the new peaceful era were ratified; and innovative legislation on family, environment, and violence against women was passed, together with a new Criminal Code and criminal procedural legislation.

In June 1994, Armando Calderón Sol took office, and things began to change radically. The Catholic Church and its allies entered into the legislative arena, and managed to make radical changes in the Criminal Code reforms being discussed at that moment. Finally, the new Criminal Code was finalised and passed on April 26th 1997, and came into effect in 1998. It criminalized abortion, and eliminated all legal grounds for self-induced abortion and abortion that the woman had consented to.

But as this legislation could be considered unconstitutional, a radical solution was devised: to reform the Constitution in such a way that the embryo or fetus would have a special legal status and that its rights, or rather, the rights society would grant to them, could never be affected by maternal health needs or the woman’s rights.

On 30 April 1997, the Legislative Assembly introduced an amendment to Article 1 of the Constitution: it recognizes all human beings as such from the very moment of conception.

In order for this reform to be effective, it had to be ratified by a qualified majority of the Legislature. This took place on 3 February 1999, and it included many votes in favour from among the parliamentary left.

New abortion-related crimes and harsher punishments were approved in the new Criminal Code, and the specific defences and exceptions included in the previous legislation had ominously disappeared.

The most relevant damaging aspects of this new legislation were:

•	Abortion is not defined, and this obviously causes a great deal of legal uncertainty.
•	Abortion is classified as a serious crime. This enables the court to impose interim detention during the course of the proceedings, which usually occurs as the women accused of abortion are generally poor and have no residence, and thus do not qualify for substitutive measures.
•	The punishment for abortion is very harsh: two to eight years in jail. In comparative law, punishment is usually not so draconian.
•	As compared to the 1973 legislation, this does not allow for any justifiable reason for abortion.
•	In the case of a pre-term stillbirth, that is before 37 weeks of pregnancy, if the woman is taken to hospital as an emergency case and she does not inform the police of the situation (which is difficult to do under those conditions), once in the hospital she may be accused of inducing an abortion, investigated and detained. The Prosecutor’s Office then changes the accusation of abortion to that of aggravated homicide, which carries a prison sentence of 30–50 years.

Supporters awaiting the release of Sonia, imprisoned for abortion and exonerated, El Salvador, 2013.

There have been, to date, no serious attempts to reform this legislation. The conservative Catholic lobby is too strong and has a significant influence on the political elite, and returning to a more tolerant form of regulation therefore seems highly unlikely.

There have been some efforts on the part of citizen’s groups to have this legislation declared void through two claims of its unconstitutionality – one in 2007 and the other in 2010 – with no positive results.

In October 2010, during its 100th Session, the Human Rights Committee of the International Covenant on Civil and Political Rights reiterated in its Comment 10 the recommendation that the State party should:

“…amend its legislation on abortion to bring it into line with the Covenant. The State party should take measures to prevent women treated in public hospitals from being reported by the medical or administrative staff for the offence of abortion. Furthermore, until the current legislation is amended, the State party should suspend the prosecution of women for the offence of abortion. The State party should open a national dialogue on the rights of women to sexual and reproductive health.”

Similarly, the UN Economic, Social and Cultural Rights Committee expressed its concern in the same terms in 2006.

Criminal law and abortion repression in comparative law and in national law

In comparative law, there are three systems whose intention is to punish a woman for seeking an abortion:

•	permitting abortion on request, up to a limited number of weeks of pregnancy,
•	permitting abortion for specific indications or grounds, or
•	absolute criminalization.

Generally speaking, setting an upper time limit establishes that there is no crime when the pregnancy is terminated by a woman, e.g. before the 12th week. Outside this time frame, according to criminal regulations in a number of countries, the other exception is a serious threat to the woman’s life or health, as established by a physician. This legal framework is found in quite a number of countries. A much more tolerant variation is that of the Cuban system, where abortion is practically available on request as long as it is done following the health guidelines in force.

In the system of grounds or indications, it is established that there are certain exceptions that deprive abortion of its illegal character and make it legal. These exceptions are usually risk to the woman’s life or health, poor prognosis for the survival of the fetus outside the womb, pregnancy as a result of rape, and more rarely, the woman’s precarious social and financial situation. This system has been adopted by most Latin American countries, and it was in force in El Salvador until the Criminal Code came into effect in 1998.

The total criminalization of abortion establishes that it should be criminally repressed with no exceptions other than that of State justification of prevailing need, or exclusion of the criminal offence, and the excuse of culpability in cases where other conduct cannot be demanded. This system is in force in Nicaragua, Chile, and Dominican Republic, among a very few countries. What is peculiar about these countries is that they constitutionally establish that life should be protected from the very moment of conception.

In the case of El Salvador, abortion regulation falls outside of these three frameworks, and conforms to a special category of its own, which may be called ultra-absolute criminalization of abortion: this establishes that abortion should be criminally punished without any exception, other than that of invoking the exclusion of liability based on assessment of conflicting goods and when no other behaviour can be demanded. This system is unique to El Salvador and exists almost nowhere else in the world, as it constitutionally considers the embryo/fetus as an individual.

It is neither equitable nor fair to resolve the situation by weighing the value of the life of a pregnant woman in need of an abortion against that of an embryo/fetus. It is impossible to treat these two interests as being of equal value under the law, as the Constitutional Court of El Salvador has done.

We believe it would be best to re-adopt the system of indications as found in most criminal codes throughout the world, a system that disappeared from El Salvador in 1998, without any evidence to justify the change, and whose loss has caused great suffering for women, mainly the poorest women in our country.

Supporters awaiting the release of Sonia, imprisoned for abortion and exonerated, El Salvador, 2013.

Acknowledgements

Research and data compilation for the original report was by Maira Aguirre; coordination and analysis was by Alberto Romero de Urbiztondo; and contributors were Víctor Hugo Mata Tobar, Margarita Rivas, and Morena Herrera Argueta. Translation from Spanish to English of the excerpts included here was by Marisa Cardon and published with kind permission of the Coalition. Many thanks to Virginia Lopez Calvo of the Central America Women’s Network in London for liaison with the Coalition and help with editing the translation.

Notes

* Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. It is internationally recognised as a central requirement for the rule of law. http://en.wikipedia.org/wiki/Legal_certainty

* Based on a female population of childbearing age of 1,403,544 from data from the 4th Population and 5th Housing Census, El Salvador, 2007.