PREGNANCY COULD EQUAL PRISON – EL SALVADOR'S ABSOLUTE ABORTION BAN
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Women in El Salvador carry an immense risk when pregnant. Even in situations where possible complications are out of their hands, they may still be imprisoned if something goes wrong during the pregnancy. Even a miscarriage may be considered enough for the state to decide to imprison the already grieving woman.[2] This is because the law forbids any form of abortion[3], even if the life of the baring mother is at peril,[4] in clear violation of human rights principles, including the right to life.
STORY OF THE AFFECTED WOMEN
The Supreme Court of El Salvador denied the right to medical abortion to Beatriz.[5] (Profile of Beatriz is required here: age, where she is from) In Beatriz’s case, abortion was necessary due to the state of her health; she struggled with lupus and kidney disease.[6] Medical professionals concluded that her pregnancy could be life-threatening and that there were fatal congenital anomalies with the fetus, which would eventually result in the fetus’ death.[7] Even though medical professionals had established these conditions, Beatriz could not follow their medical advice. Eventually, measures were taken but not in the form of an actual abortion. The government had allowed her to receive a cesarean section instead of an abortion. [8]
This case shows that regardless of the gravity of the pregnancy’s circumstances, abortion is still forbidden. Indeed, the procedure is denied even when there are no other medically- supported options. These rigid measures are in breach of internationally acknowledged human rights, such as the right to health, life, liberty and physical integrity.[9]
An interview was conducted with Sara García, psychologist and member of La Agrupación Ciudadana por la Despenalización del Aborto- an organisation in El Salvador to condemn and assist on matters related to abortion. García is in charge of coordinating the advocacy and alliances team. Garcia stated during the interview that El Salvador is currently one among the six countries that have an all-encompassing ban on abortion with full criminalisation in all circumstances. García further adds ‘women cannot access any type of abortion, not even when their life is at risk.’
Manuela is another woman who has suffered under the current anti-abortion laws. At age thirty-three, Manuela turned to the public health system for an obstetric emergency. Upon arriving, she faced an accusation about the interruption of her pregnancy due to a miscarriage. As a result, she was sentenced to thirty years in prison.[10] While serving her sentence she was diagnosed with lymphatic cancer, but timely treatment was neglected. Socioeconomic inequality, as established in the next chapter, plays a crucial role here.
This case shows how the absolute ban on abortion and its criminalisation has a severe impact on women’s lives. The wave of clandestine abortions is on the rise in the country as a result of the measures towards abortion. Medical accountability is not present for these procedures, and post-abortion care is not available due to their illegal nature.[11]
THE GAP BETWEEN RICH AND POOR
In addition to the deficient treatment of women’s health, another issue emerges when we look at the dynamic of income inequality. There is a clear difference in the treatment of rich and poor women who are looking for an abortion, and the outcomes of cases where women of different socioeconomic statuses are involved as Garcia describes below.
According to Sara García: “When abortion is penalized and criminalised, this constitutes an option for those with economic resources to turn to abortion in situations where those people can travel abroad to render their abortion there. Whereas on the other hand, it constitutes a violation of human rights for those who do not have these same resources”.
If a woman wishes to interrupt a pregnancy in El Salvador without sufficient resources, she has to resort to either clandestine abortion or exposing herself to a justice system that can sentence her to thirty or forty years in prison. Sara further notes that “criminalising abortion constitutes an inequality that is deepening and ultimately affects young women living in poverty”.
VIOLATION OF WOMEN'S INTERNATIONALLY ACKNOWLEDGED RIGHTS
Women have been subjected to human rights violations throughout Latin America due to the influence of the catholic church and overall societal attitudes towards abortion.[12] In a number of Latin American countries, a total abortion ban is commonplace. Some states, however, have changed the law to grant women internationally acknowledged human rights, such as the rights to life, health, and to be free from cruel, inhumane, or degrading treatment.[13] El Salvador is still lacking in this regard.
Women in El Salvador are disproportionately impacted by the perpetual state violation of internationally acknowledged human rights. The UN Human Rights Committee has spoken on the issue stating that unsafe abortion (which becomes a solution for many women in countries practicing a total ban on abortion), has led to a massive increase in maternal mortality rates.[14] The UN Human Rights Committee further stated that the availability of safe, legal, and effective access to abortion is imperative to the enjoyment of international human rights of women, in particular the right to bodily autonomy and the right to life.[15]
La Agrupación Ciudadana por la Despenalización del Aborto is currently legally and socially supporting twenty-two women who have been accused or prosecuted due to abortion or obstetric emergencies.
Due to public movements speaking up for women’s rights back in 2016, a deputy from the Frente Farabundo Martí para la Liberación party submitted a law proposal to decriminalise abortion in four particular cases; when the pregnancy may put at risk the health and life of the mother, when the fetus is inviable, when rape or human trafficking resulted in the pregnancy, or when a minor has suffered rape.[16] An intense debate regarding the need to transform the current legislation followed. Unfortunately, although the project is in the Legislative Assembly of El Salvador, the issue has not been revised since 2018. International organisations have pointed out the abuse of women and the violations of their basic human rights. But according to Sara, the movement had little success, because the El Salvadorian government is reluctant to change its laws.[17]
Sara and the organisation believe that the government of Nayib Bukele is distant to issues related to sexual and reproductive rights. The government must raise the debate through the Health Ministry as an issue of public health to generate change.
Sara further argues that ‘training process would help to address the issues of professional confidentiality. Breaches of confidentiality are the reality of the violations faced by countless El Salvadorian women as, doctors tend to report abortion cases to the appropriate agencies’.
In addition, ‘international recommendations must be followed, both the Universal Periodic Review and the Working Group on Arbitrary Detention, as per the UN directives on the issue of criminalising women who violated the absolute abortion ban-law.’
Although the legislative revision has been at a standstill since 2018, in March 2021 Manuela's hearing will be held in front of the Inter-American Court of Human Rights. It is the belief of La Agrupación Ciudadana por la Despenalización del Aborto and pro-abortion movements that the judgment will be favourable to change in El Salvador and El Salvador will be held accountable for inhumane treatment of women. Both la Agrupación Ciudadana por la Despenalización del Aborto and pro-abortion movements within the country have vested their hope in this judgment. This case can mean hope for change, hope for equality between men and women in 2021 regarding their right to life and liberty, and hope for a better future.
SEXUAL VIOLENCE, PREGNANCY AND IMPUNITY
In addition to the aforementioned issues on the criminalisation of abortion, another set of issues arises. The criminalisation of abortion is creating an immense obstacle for women who face sexual violence. Pregnancies arising out of sexual violence are rarely reported and, as a result, impunity for the culprits prevails. With regards to youth pregnancies, Sara Gracía further adds that as of 2019, about 19,190 girls and adolescents were recorded pregnant. The data shows both sexual violence as well as a lack of proper sexual-education as the main reasons for high youth pregnancy rates. Unfortunately, adolescents and girls do not have access to sexual education and many cases of sexual violence go unreported.[18]
THE ROAD AHEAD
It is clear from the cases shown herein that change is due. Women need to be able to rule over their own bodies without any interference. The decriminalisation of abortion is essential to achieve this goal. In addition, more effort should be sought by legislative bodies to ensure the protection of women within society, in particular protection against sexual violence and rape by fighting the impunity that overshadows this crime within the nation.
El Salvador should adopt more lenient legislation regarding abortion so that girls and women could enjoy the right to life and the right to bodily autonomy without infringement. More lenient laws would facilitate adherence to the internationally acknowledged human rights of women, including issues of gender-based violence. An example of a lenient shift in abortion laws in Latin America is the decriminalisation of abortion in Argentina as of December 2020 and January 2021. It is now time for other countries to follow the lead and take responsibility for the long-neglected rights of girls and women.
[1] Organization of American States (OAS), Charter of the Organisation of American States, 30 April 1948, Rep No. 29/17
[2] Tracy Wilkinson, ‘El Salvador Jails Women for miscarriages and stillbirths Los Angeles Times, https://www.latimes.com/world/great-reads/la-fg-c1-el-salvador-women-20150415-story.html accessed 10-01-2021
[3] The prohibition of medical abortion is contained in the Salvadorian Criminal Code, Arts. 133 to 137.
[4] K. Zabludovsky, ‘A high-risk pregnancy is terminated. But was it an abortion?’ New York Times http://www.nytimes.com/2013/06/05/world/americas/woman-who-sought-abortion-in-el-salvador-delivers-baby.html?_r=0 accessed 12-01-2021
[5] K. Zabludovsky, ‘A high-risk pregnancy is terminated. But was it an abortion?’ New York Times http://www.nytimes.com/2013/06/05/world/americas/woman-who-sought-abortion-in-el-salvador-delivers-baby.html?_r=0 accessed 12-01-2021
[6] Organization of American States (OAS), Charter of the Organisation of American States, 30 April 1948, Rep No. 120/17
[7] Alia Junawalla ‘Human Rights Law and Abortion in El Salvador’ Health and Human Rights Journal https://www.hhrjournal.org/2016/08/human-rights-law-and-abortion-in-el-salvador/ accessed 14-01-2021
[8] Alia Junawalla ‘Human Rights Law and Abortion in El Salvador’ Health and Human Rights Journal https://www.hhrjournal.org/2016/08/human-rights-law-and-abortion-in-el-salvador/ accessed 14-01-2021
[9] Center for Reproductive Rights, Political process and abortion legislation in El Salvador: A human rights analysis (New York: Center for Reproductive Rights, 2001) http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/persecuted1.pdf accessed 14-01-2021
[10] Organization of American States (OAS), Charter of the Organisation of American States, 30 April 1948, Rep No. 29/17
[11] Alia Junawalla ‘Human Rights Law and Abortion in El Salvador’ Health and Human Rights Journal https://www.hhrjournal.org/2016/08/human-rights-law-and-abortion-in-el-salvador/ accessed 14-01-2021
[12] Erika L Sánchez ‘Thank the Catholic church for terrifying abortion restrictions in Latin America’ The Guardian https://www.theguardian.com/commentisfree/2013/aug/27/abortion-rights-latin-america accessed 16-01-2021
[13] American Convention on Human Rights. Treaty Series, No. 36, Organization of American States, 1969.
[14] The UN Human Rights Committee’s General Comment 36 on the Right to Life and the Right to Abortion http://opiniojuris.org/2019/03/06/the-un-human-rights-committees-general-comment-36-on-the-right-to-life-and-the-right-to-abortion/ accessed 28-02-2021
[15] The UN Human Rights Committee’s General Comment 36 on the Right to Life and the Right to Abortion http://opiniojuris.org/2019/03/06/the-un-human-rights-committees-general-comment-36-on-the-right-to-life-and-the-right-to-abortion/ accessed 28-02-2021
[16] Lauryn Claassen ‘The Fight to Overturn El Salvador’s Abortion Ban’ https://pulitzercenter.org/stories/fight-overturn-el-salvadors-abortion-ban accessed 19-03-2021
[18] Latin America Working Group ‘How violence affects women in El Salvador’ https://www.lawg.org/how-violence-affects-women-in-el-salvador/ accessed 20-03-2021
