Her Body, Our Laws

by Michelle Oberman

  Casas had defended Marina in the summer of 2007, when Marina was prosecuted for the crime of abortion. Marina was one of only a handful of women prosecuted for abortion in Chile that year. She was caught when a sensational news channel ran a sting operation, filming women as they entered an abortion doctor’s office, and as they exited. Afterward, the reporters approached each of the women individually, showed them the film, and offered them a deal: confess to us on film and we will tell the district attorney to make a plea agreement with you. Most of them confessed, but they all were prosecuted anyway.

  “My story was the most interesting to the press because I was the oldest,” Marina told me. “I was almost forty, and I had a teenage daughter. I’d been living overseas for twenty years, and had only recently returned to Chile.”

  “When I became pregnant, I was so ashamed,” Marina continued. “My daughter could have such a thing happen to her, but not a grown woman like me. My period had been irregular for the past few years. I didn’t even notice it wasn’t coming.”

  “I made phone calls to old girlfriends,” Marina continued. “I had been gone so long. I knew I couldn’t keep it, though, so I called until a friend of a friend gave me a name.”

  “How much did it cost you?”

  “$5,000. The rich women fly to Miami, you know. Women like me stay here. It costs between $5,000 and $8,000. Really, it’s cheaper to fly to Miami. But then it’s so obvious. And besides, there was my work and my daughter, so I never really considered it.”

  Marina was convicted. She had been caught on film. Yet, even though the crime carries a sentence of up to five years, like other women convicted of abortion in recent years in Chile, Marina did not have to go to prison. She didn’t even have to be on probation, nor was she required to comply with any particular court orders. Marina’s sentence was suspended. After the trial, Marina went free.

  I returned to the United States baffled by the Chilean abortion law. If abortion was tantamount to murder under the law, how could the country be at peace with the high rates of illegal abortion and the low rates of law enforcement?

  The following year, in 2009, I attended the first binational meeting of El Salvadoran and Nicaraguan abortion-rights’ activists. Like Chile, both of these countries ban abortion without exception. The bans were relatively new; when El Salvador banned abortion in 1998, it became the world’s third country, along with Chile and Malta, to do so. Nicaragua joined that number in 2004. In both countries, as in Chile, the bans intensified already restrictive abortion laws, which for decades had outlawed abortion except in cases of threat to maternal life or health, rape or incest, or fetal anomaly.

  Lawyers, doctors, and activists from the two countries met to share information about the law’s impact—largely on the poorest women in both countries—and to discuss strategies for law reform. At the gathering, it became clear that the situation in El Salvador was different from that in Nicaragua and Chile. In El Salvador, the government actively attempted to enforce the law. I heard stories of women who were shackled to hospital beds, still hemorrhaging, after seeking care in emergency rooms. In the ten years since the ban took effect, scores of women had been imprisoned for crimes related to illegal abortion.

  I wanted to know more. I returned to the United States and secured funding for a new research project, looking at the impact of criminalizing abortion in the twenty-first century. Over the next five years, I returned nine times to El Salvador.

  At some point during the weeks and months I spent in El Salvador, I realized I was not simply researching the impact of El Salvador’s abortion ban. Instead, I was trying to solve the same puzzle in El Salvador that I’d encountered in Chile: there was widespread political support for the ban, yet illegal abortion was commonplace and prosecutions were so sporadic that it was hard to imagine they deterred women from terminating their pregnancies.

  Over the six years during which I researched and wrote this book—2010–2016—the battle over abortion law in El Salvador intensified. Advocates for and against El Salvador’s abortion ban garnered attention within the country and around the world as they fought over the law. The more pitched the battle, the more familiar it felt to me, until finally I realized that the war over abortion, whether in El Salvador or in the United States, takes on the same form: it becomes a struggle over abortion law.

  Watching the abortion war play out in El Salvador, I slowly realized that, for all the fighting over abortion laws, once you get past the slogans, neither side seems to spend much time considering what they’re fighting for.

  I found I was writing a book about how and why and how much and to whom abortion laws matter. And to answer those questions, it would help to have a deeper understanding of the values and hopes that animated the people in the country I knew best.

  Even as I was finishing my research in El Salvador, I set about investigating abortion politics in the United States. I started by visiting Oklahoma, one of the most pro-life US states. There, I came to know lawyers and advocates who have devoted much of their lives to fighting to make abortion once again a crime. Closer to home, I met with Californian abortion-rights scholars and activists. From them, I learned not only what they think is at stake in the fight over abortion laws, but also what issues the abortion war has left behind.

  It was here in the United States, in the overwhelmingly pro-choice state of California, that I became convinced of the truth in my hunch, formed years ago when studying pregnant addicts and mothers who killed their children. For the most vulnerable girls and women, abortion’s legal status doesn’t make all that much difference.

  This book is the result of my long journey through the abortion war. I hesitate to call it one war, rather than many. After all, my journey has taken me to different countries, where I’ve met people with vastly different life experiences and wide-ranging conceptions about abortion’s morality. I’ve studied the laws of jurisdictions all over the world.

  Yet, I’ve come away certain of at least one thing: the battle lines over abortion are being drawn with laws. There is one war over abortion, and laws are the weapons with which it is fought.

  This book calls our collective attention to the fundamental, yet unasked question underlying our abortion war: what is it about abortion that we think will be changed by way of abortion laws?

  This question is unasked because our discourse about abortion is largely limited to announcing one’s position on abortion’s legality. All that the abortion war requires of us is that we pick our side on the question of legality. As if the question of how and why abortion laws matter was beside the point.

  I consider myself pro-choice. That is to say, I support a woman’s unfettered right to choose to terminate a pregnancy. But this book is not written to persuade you to keep or change your opinion about whether abortion should be legal. Rather, it’s to invite you to consider the ways in which abortion law matters—to encourage you to reconsider the utility of the terms of our debate, if not the debate itself.

  I am issuing not so much an invitation, in the spirit of intellectual inquiry, but more of an exhortation, offered in the names of the countless women whose stories I carry with me. Because year after year, the war over abortion law consumes vast resources, not only in the United States but in countries worldwide. And year after year, that war does little to alter the concrete factors that shape whether a woman will consider having an abortion.

  ONE

  BEATRIZ AND HER CASE

  I want to start our search into how abortion law matters by taking you to El Salvador. It has the strictest laws against abortion in the world: abortion is never legal there, not even if a woman needs one to save her life.

  In spring 2013, a case arose that put the abortion ban to the test. A woman known only as Beatriz was just over three months pregnant when doctors learned that her fetus didn’t have a brain. It had a rare condition called “anencephaly,” which is always fatal. Humans cannot live without a brain; if her baby did not die in u
tero, it would die shortly after birth. To make matters worse, Beatriz’s health status was extremely fragile because she had lupus—an incurable disease that causes the body’s immune system to attack its own organs. Two years earlier, she had almost died and her kidneys became permanently impaired as a result of her pregnancy with her first child. Her doctors warned that she could easily die if she became pregnant again.

  With no hope for her fetus’s survival and her life in danger, anywhere else in the world, Beatriz would have been advised to have an abortion. Yet because the law in El Salvador completely prohibits abortion, that option was foreclosed.

  Beatriz petitioned the Salvadoran government for permission to terminate her pregnancy. Her case triggered an international firestorm. Within El Salvador, branches of government took aim at one another. Around the world, advocates on both sides of the abortion war circulated news stories, petitions, and videos, pleading for support.

  I followed Beatriz’s case from the United States as it made its way through the Salvadoran legal system, stretching on for weeks and then months. Beatriz was seven-months pregnant by the time the Salvadoran Supreme Court denied her petition, concluding that an abortion was unnecessary because her life was not at imminent risk. Then, two weeks later, her doctors performed an emergency cesarean section. Beatriz’s daughter died shortly after birth.

  Neither side was surprised by the baby’s death. The fact that the fetus was doomed was understood from the start. It was one of the only facts on which both sides agreed.

  At the most basic level, the outcome in Beatriz’s case seems perverse. For the sake of a fetus that would never live, Salvadoran law forced Beatriz to endure months of physical and psychological pain, gravely risking her own health and life.

  But Beatriz’s case cannot be understood simply at this basic level. As we will see in this chapter, Beatriz’s case played out not only in the legal sphere, but also in the court of public opinion. For those who opposed the abortion law, her case was the utmost example of the law’s absurdity, and a perfect case with which to challenge the ban. For those who supported the ban, Beatriz’s case tested the moral and legal integrity of their position that life begins at conception. Allowing Beatriz an abortion would have made that belief seem negotiable.

  I went to El Salvador to try to understand Beatriz’s case, with its puzzling outcome. I came home with many stories that help to explain why things unfolded as they did. Read together, these stories permit us to understand, through fresh eyes, the purpose and the significance of abortion laws. Just as importantly, they shed light on the limited extent to which the law makes a difference in the lives of women like Beatriz.

  BEATRIZ’S PREDICAMENT

  Dr. Guillermo Ortiz first met Beatriz in 2011, when she was pregnant with her son, Claudio, who was two years old when the story with which we are concerned began. Ortiz is one of El Salvador’s leading perinatologists, specializing in managing high-risk pregnancies, and working at La Maternidad, the country’s main public hospital for obstetrics and gynecology.

  “That first pregnancy was terrible,” he told me. “She almost died. She got to seven-and-a-half months, but then her lungs filled with fluid and we couldn’t control her blood pressure.”1

  Beatriz had been hospitalized for several months, beginning at twenty weeks of pregnancy. Her doctors worked around the clock to keep her stable so that her fetus could develop long enough that it would be able to survive outside of the womb. Beatriz was on six different medications to control her blood pressure, but finally she developed preeclampsia—a condition in which blood pressure becomes life-threateningly high, damaging other organs. Beatriz’s kidneys were failing.

  “We gave her an emergency cesarean section,” Dr. Ortiz told me. “The newborn spent more than a month in the ICU, but he was in good condition. And we saved Beatriz’s life. But as a result of that pregnancy, she now has chronic hypertension and a kidney dysfunction called lupus nephritis.”

  Her second pregnancy was more complicated from the start. In February 2013, suspecting she might be pregnant, Beatriz stopped taking her lupus medicine, which put her into a medical crisis. Her skin was covered with painful eruptions; she had hypertension, and her damaged kidneys were spilling protein into her urine, leaving her blood and body severely weakened.

  By the time her lupus doctors verified her pregnancy and referred her to La Maternidad, she was eleven weeks pregnant and very ill.

  So Beatriz found herself back at La Maternidad, pregnant and panicked because she knew too well how close she’d come to dying during her first pregnancy.

  “We reassured her that we would do everything we could to keep her safe and healthy,” Ortiz told me. “The surprise came a few weeks later, when we did the ultrasound and realized the fetus was anencephalic. So the probability of its survival, here and in any other hospital in the world, is zero. I tell you this because there are those who are confused by the terminology. Anencephaly is related to conditions such as microcephaly or hydrocephaly. And with those conditions, there is a possibility of survival. So there were those who said, ‘I know of a case in which the baby survived.’ But that’s not anencephaly.”

  “What were your options, once you realized the fetus didn’t have a brain and couldn’t survive?” I asked.

  “When we realized it had no chance of survival, and that the only thing we’d accomplish by continuing the pregnancy is to risk Beatriz’s life, we talked to her.”

  The doctors told Beatriz and her mother about the risks she would face if she carried this pregnancy to term. There were all the life-threatening complications she knew firsthand from her first pregnancy: kidney failure, preeclampsia, stroke, blood clots, and more. In addition, there were risks due to the fact that the fetus was anencephalic. She would have to be hospitalized until she had the baby.

  Otiz said, “She was around fourteen weeks pregnant at that point. Her situation was even more serious because her first delivery had required a cesarean section. We knew it was less risky to interrupt an early pregnancy; it was much safer than waiting to do another cesarean section, with its own risks, in addition to the risks from the lupus. We convened a meeting of the medical committee, which is what we do when there is a challenging case. We call together all the relevant experts: intensive care, obstetricians, and neonatologists, to discuss options and set a plan. In this case, we all agreed that interruption was the ideal plan.”

  Beatriz agreed and asked the doctors to perform the “interruption,” as abortion is called there.

  Ortiz continued, “But when we talked with the hospital attorney, he told us that our proposed ‘interruption’ put us at risk of violating the law. We sent him to consult with legal experts, including the Fiscalia de la Republica [the governmental office overseeing all prosecutions], a human rights lawyer, a family law judge, but none supported an interpretation of the law that permitted us to interrupt pregnancy. None of them said, ‘Do it. We’ll support you.’”

  BEATRIZ’S DOCTORS’ PREDICAMENT

  Beatriz’s request that her doctors terminate her pregnancy posed a legal dilemma. In 1998, El Salvador changed its penal code from a law permitting legal abortions in cases of rape, incest, or threat to maternal health or life to a law banning abortions in all cases.2 There is no way to legally end a pregnancy in El Salvador, even one like Beatriz’s, in which the fetus will not survive outside the womb.

  At the same time, El Salvador’s constitution guarantees a pregnant woman the same right to life promised to all citizens, such that the doctors who fail to provide a dying patient with life-saving treatment violate the patient’s fundamental rights. Because Beatriz’s doctors believed her illness threatened her life, Beatriz’s case forced the state to grapple with two competing rights to life. Under Salvadoran law, both Beatriz and the fetus she carried had a right to life.

  It turns out that doctors have been navigating this ambiguity at a practical level since 1998, when abortion was banned. One of the most vivid e
xamples of the impact of the ban on abortion is seen in the way it shapes how doctors treat high-risk pregnancies.

  Ortiz described the approach he and his colleagues use when treating very ill pregnant women. He calls it “conservative treatment”:

  When we look to international health literature to guide us about how best to treat certain illnesses—for example, metastatic breast cancer and an early pregnancy—the experts suggest terminating pregnancy. We can’t follow that suggestion, though. And, when we seek guidance on how to proceed without terminating the pregnancy, there’s none to be had. And so we forge our own experience. . . . For example, in the case of cancer, we give the lowest doses of chemo, rather than give her the best, most effective treatment, because we have to worry about the fetus.3

  Ortiz’s discomfort with conservative treatment is that it isn’t really treatment at all. In the absence of established medical guidelines, let alone systematic research into how or whether breast cancer chemotherapy works when given at low doses to pregnant women, El Salvador is conducting an ongoing, unregulated medical experiment on this segment of its population—women and fetuses alike.

  The impact of conservative treatment is perhaps most readily observed in the way Salvadoran doctors treat ectopic pregnancy. An ectopic pregnancy occurs when a fertilized egg gets stuck in the fallopian tube, rather than moving down into the woman’s uterus. Instead of being able to grow, as it would in the uterus, the egg starts to develop inside of the tube, which is small and incapable of supporting a pregnancy. There is no chance it will develop into a fetus, let alone become a live baby. Left to grow, within twelve to sixteen weeks, the embryo explodes, destroying the tube, leading the woman to bleed profusely, and triggering health complications ranging from the risk of stroke to kidney damage and even death.4 In addition, losing a fallopian tube may limit her ability to conceive in the future. Ectopic pregnancies are not rare. Between 2005 and 2009, the most recent years for which statistics are available, the Salvadoran Ministry of Health estimates that there were 1,567 ectopic pregnancies and another 46 abdominal pregnancies.5