Her Body, Our Laws
Page 3
Another of Beatriz’s doctors described, with evident frustration, the way he treats ectopic pregnancies. You hospitalize the woman and then
you watch her night and day with scans, and the minute it bursts, you operate and take the tube. . . . She’s in imminent risk of dying and I’ve got the responsibility of saving her life. Waiting is totally contrary to medical principles. It’s no different from having an aneurism in the brain; one can see from scans that it’s growing and growing. Why would you wait until it explodes? There’s no single medical principle that would justify waiting.6
I pushed the doctor to clarify the connection between the ban on abortion and this approach to treating ectopic pregnancies—embryos that would never survive. His reason reflected the central puzzle of Beatriz’s case: if it’s a person from the moment of conception, then deliberately killing the embryo, let alone the fetus, could be considered homicide.
If the hospital lawyers interpret the law to require waiting for a tube to explode, rather than removing an ectopic pregnancy, it’s easy to see why they similarly would have advised the doctors against terminating Beatriz’s pregnancy. She was already fourteen weeks along; she was carrying a fetus, not merely an embryo. And in spite of its inevitable demise, her fetus was growing larger every day.
EL SALVADOR’S RESPONSE TO BEATRIZ’S REQUEST FOR AN ABORTION
When it became clear that the doctors would not terminate her pregnancy, one of her nurses reached out to a local women’s group that found Beatriz a lawyer. In April, when Beatriz was seventeen weeks pregnant, the lawyer filed a petition asking the court for permission to terminate her pregnancy. The government took fifty-five days to reach a decision in her case, by which point she was nearly seven-months pregnant.
By examining the legal proceedings in the context of the climate in which they played out, it is easy to see the extent to which Beatriz’s predicament came to stand for far more than the simple legal question of whether the law ought to permit her a life-saving abortion. From the start, we see how her case became a national and then international referendum on the abortion ban. From observing this clash, we understand abortion laws to have a symbolic importance that distinguishes them from ordinary crimes, such as robbery.
Beatriz Files Her Petition
Once Beatriz’s doctors refused to terminate her pregnancy, Beatriz’s lawyers took two actions. First, they filed a petition with the Salvadoran Supreme Court, seeking a court-ordered abortion for Beatriz. At the time, she was just over four months pregnant. The court took twelve days to respond to her petition.
In the meantime, her lawyers launched a full-scale media campaign. They began by contacting the country’s Ministry of Health, the government agency charged with overseeing health care and setting policies for the country’s public hospitals, which treat the vast majority of the population. After reviewing Beatriz’s medical record, the ministry posted a summary of Beatriz’s case on its website, and the minister of health herself gave a statement to the press publicly urging the Supreme Court to permit Beatriz’s doctors to interrupt the pregnancy on the grounds that it was the only way to safeguard Beatriz’s life.7
When the Ministry of Health released its summary of Beatriz’s case, along with its recommendation that she be allowed to terminate her pregnancy, her case became a public affair, and Beatriz found herself at the center of an international uproar over abortion. Within a day of filing her petition with the Supreme Court, international organizations from the United Nations to Amnesty International issued statements supporting Beatriz’s right to end her pregnancy.
In El Salvador, advocates weighed in on both sides of the debate. Local newspapers issued editorials decrying the ministry’s position and urging the court to deny Beatriz’s petition. Official organizations such as the Office on Human Rights, with leaders appointed by the left-leaning government, joined the Ministry of Health in calling for the state to permit Beatriz to terminate her pregnancy. They were countered by a coalition of more than fifty groups that joined forces to form the Organization for the Family, whose leaders warned that the case was being used to legalize abortion.8
In spite of efforts to conceal Beatriz’s identity, journalists found both her mother’s house and the two-room home she shared with her husband and his parents. Television cameras camped outside both locations, and newscasters harassed her mother in order to get her opinion on the case.9 Beatriz, her son, and her husband went into hiding, taking shelter in a village on the other side of the country, at the home of one of her lawyer’s friends.
Beatriz’s Petition Is Referred to the IML
Twelve days after she filed her petition, the Supreme Court agreed to hear Beatriz’s case. The first step in the Supreme Court’s evaluation was to refer her case to the Instituto de Medicina Legal (IML). There’s no US equivalent to the IML, but such institutes are relatively common in Latin America, where they operate as independent bureaus that combine data collection (e.g., tracking vital statistics and issuing birth and death certificates) and conduct research or investigations at the behest of the government.10
Rather than simply permitting each side to present medical experts, the Salvadoran Supreme Court asked the IML to render an independent expert opinion as to whether Beatriz needed an abortion to save her life. As a government agency, the IML employs a handful of doctors to advise it on simple cases. It also has the capacity to call witnesses, such as Beatriz, and to seek input from additional experts as needed.
“The job of the IML,” its director, Dr. Jose Miguel Fortin Magana, later explained to me, “was not to advise the Supreme Court on whether to permit the abortion. Instead, our job was simply to answer two questions: one, is Beatriz in imminent danger of dying, and two, is it the case that terminating the pregnancy is the only treatment that will save her life?”11
A bit of background will help explain how Fortin Magana conducted the inquiry into Beatriz’s petition. Unlike the Ministry of Health, in which all top administrative posts are appointed by the president and the controlling political party, the IML is considered an independent government agency, offering support on issues of fact and science. Because these issues are framed as apolitical, rather than conceived of as policy driven, the director and staff serve indefinite terms of office. They may be appointed by a given president when a vacancy arises, but the expectation is that the director will serve an indefinite term.
At the time of Beatriz’s petition, IML director Fortin Magana was a longtime member of the conservative political party, ARENA. By contrast, the president and the head of the Ministry of Health were members of the opposing liberal political party, Farabundo Martí National Liberation Front (FMLN). These parties are not simply political opponents, at least not by US standards. From 1980 to 1992, El Salvador was torn by a civil war in which members of ARENA and FMLN were on opposing sides. Tens of thousands were killed.12
Against that political backdrop, consider Fortin Magana’s description of the experts appointed to evaluate Beatriz’s request. In order to answer the questions of whether Beatriz was dying and whether she could be saved only by having an abortion, Fortin Magana assembled a panel of experts. He said:
We went to the president of the country’s leading medical school and he helped us identify experts. Then we brought in the presidents of the national associations of nephrology, rheumatology, and medical ethics. We didn’t know them before.
The Instituto de Medicina Legal brought with it the head of forensic medicine, who is an evangelical, the head of strategic development, who is a Mason, and like myself, a psychiatrist and a Catholic. We didn’t need to include experts in obstetrics and gynecology, because the Instituto de Medicina Legal already has these experts on our staff. We only called for the experts we didn’t already have.
Two puzzling things stand out in the assemblage of experts who made up the IML’s panel. First, there was no one who specialized in high-risk pregnancy. One would expect to find an obstetrician with such expertise
on the panel, as this is the branch of the medical profession best qualified to assess the very questions the Supreme Court put to the IML: was Beatriz’s condition life-threatening, and was abortion the only way to save her life? The second puzzle was Fortin Magana’s emphasis on religious diversity among his experts. Why did he think it important that the experts included Catholics, Masons, and evangelicals? Both of these puzzles indicate how the politics of abortion shaped the legal proceedings in Beatriz’s case.
Let me discuss the second puzzle first. Although El Salvador is a democracy, it is also a country in which the vast majority of citizens are religious. Regional studies show that over 90 percent of people in Central America identify as Christians.13 In El Salvador, the Catholic Church remains the predominant religious organization, with approximately 50 percent of Salvadorans calling themselves Catholic. But the past several decades have witnessed a surge in the popularity of evangelical Christianity, and today, as many as 40 percent of Salvadorans call themselves evangelicals.14
By recruiting experts from a variety of religious backgrounds, Fortin Magana was assuring the public of the legitimacy of his process. He listed the participants’ religious affiliations to show he had taken steps to safeguard the process against the bias that might come if the experts all reflected a single religious perspective.
Given his attention to concerns about religious diversity, how could it have seemed fair to exclude the country’s best experts on managing high-risk pregnancy? In terms of medical expertise, Fortin Magana’s panel was limited, at best. As one of Beatriz’s doctors later decried: “His experts were a forensic specialist in rape, an ordinary gynecologist, and himself—a psychiatrist—plus some generalists from the medical school. What sort of opinion can a nephrologist [a doctor who treats kidney disease] have on managing pregnancy in a patient with lupus?”15
From Fortin Magana’s perspective, though, the country’s leading high-risk obstetricians were not neutral experts. After the Ministry of Health published Beatriz’s case on its website, El Salvador’s Association of Obstetricians and Gynecologists sought permission to review Beatriz’s full medical record. Shortly after its review, the association, which represents the country’s small cadre of experts in treating high-risk pregnancy, went on record by publishing an opinion supporting Beatriz’s petition to terminate her pregnancy.16
Thus, as Fortin Magana saw things, by the time the IML began to assemble its panel, the country’s high-risk obstetricians were no longer neutral. They had already announced their decision about whether Beatriz’s life was at risk, about whether she truly needed an abortion.
It is easy for me to slip into cynicism at this point, and to conclude that Fortin Magana, who favored the ban, excluded these medical experts because he knew they’d vote to support an abortion. And perhaps I’d be right in that Fortin Magana’s support for the law may well have motivated him to find experts whose views aligned with his own.
But it’s also possible to see his actions as an effort to ensure an unbiased audience for Beatriz’s evaluation. In announcing their support for Beatriz’s right to an abortion, these experts essentially declared they had already made up their minds. Before they met with the other experts, collectively reviewed her medical record, and evaluated her in person, they had already answered the two questions the IML was tasked with reviewing for the Supreme Court: “One, is Beatriz in imminent danger of dying and, two, is it the case that terminating the pregnancy is the only treatment that will save her life?” It was as if they’d decided the case before it was even tried.
When that happens here in the US legal system—as when a judge gives an opinion on a case that is currently or soon to be tried before her—we demand that the judge recuse herself. We worry that a judge who’s already made up her mind will not give both sides a fair hearing.
In Beatriz’s case, if the doctors already supported her right to abort on the grounds that this pregnancy was life threatening, then it was obvious how they would answer the court’s narrower questions about imminent danger of dying and treatment alternatives.
So it is that, before we even lift the curtain on the first of Beatriz’s legal hearings, we can see how the politics of abortion permeated not only the realm of law, but also that of science.
The Instituto de Medicina Legal Evaluates Beatriz’s Petition
The IML panel took almost six weeks to review Beatriz’s medical record. It pored over hundreds of pages describing her first pregnancy, the health crisis it precipitated, and the successful outcome after an emergency cesarean section delivery. The panel reviewed the tests and examinations pertaining to Beatriz’s current pregnancy, and then, on May 3, it summoned Beatriz from the hospital to the IML offices for a physical examination. By that time, she was twenty-three-weeks pregnant.
Fortin Magana was one of three evaluating physicians. Because the hearing happened behind closed doors, all I know comes from what Beatriz told me, a year later, when I asked her to describe it:
There were three doctors. I didn’t know their names. They didn’t make me undress. They just checked my face and my hands, looked at the marks on my skin. And listened to my breath. They asked about my childhood and made me do some drawings. I guess they wanted to see if I was OK in my head. Maybe they thought I was crazy because of what I wanted to do.
On May 8, Fortin Magana announced the decision on behalf of the IML. It found that Beatriz was stable and, as such, there was no need to terminate the pregnancy.17
“Terminating the pregnancy was not necessary,” Fortin Magana told me, “nor would it remedy her chronic illness”:
Our conclusion was unanimous; we advocated conservative treatment. We never said, as was reported throughout the world, that her life wasn’t important or shouldn’t be saved. On the contrary, we specifically said she could terminate the pregnancy if her symptoms worsened and her life was in danger. The doctors could put the infant in an incubator and if God wants, it will live, and if God doesn’t want, it will die. But we weren’t leaving Beatriz in danger of dying.18
After the IML’s May 8 ruling, the Salvadoran Supreme Court agreed to hear arguments from both sides of Beatriz’s case a week later, on May 15. During that week, her supporters mounted a publicity campaign, using political connections, social media, and the international press to plead her case. The political firestorm that ensued reminds us of the extent to which Beatriz’s case became a referendum on abortion. It shows how both sides understood the stakes and gives us a sense of the pressures the case placed on the Supreme Court.
Shortly after the IML released its report finding that Beatriz was stable, Salvadoran minister of health Dr. Maria Isabel Rodriguez gave a public interview condemning the report. In it, she described Beatriz’s medical condition in vivid detail and made the case for abortion, telling the press that therapeutic abortion was the only “viable and just solution,” and that Fortin Magana’s declarations were “crude and rude.”19
President Mauricio Funes, who had not addressed the subject of abortion in the first four years of his five-year presidency, announced his belief that Beatriz had the right to make decisions about her own life.20
Beatriz’s supporters filmed her, the image cropped to show only her puffy hands, blotchy and red from the lupus, folded over her obviously pregnant belly.
“I want to live,” she said quietly. “I beg from my heart that you let me.”
The video went viral, circulated by Amnesty International and other social media outlets throughout the world.21
At the same time, international pro-life groups such as Human Life International called on El Salvador to hold fast to its opposition to abortion under all circumstances.22
Julia Regina de Cardenal, the head of El Salvador’s pro-life movement Sí a la Vida and also a columnist for El Diario de Hoy, one of the country’s two leading newspapers, cast the debate over Beatriz as an assault on Salvadoran sovereignty:
In our country the Constitution defends all human lif
e against the powerful interests of those who manipulate situations like this in order to open the door to the multinational multimillion-dollar abortion industry. The IML uncovered the truth: showing that Beatriz is stable, that she can continue her pregnancy, that medical intervention will be possible as soon as any complication arises, in spite of the false declarations of pro-abortion groups, the Ministry of Health and international organizations, among others. We await the apologies of the United Nations, the International Court of Human Rights, the Organization of American States and Amnesty International for having pressured our leaders to commit a crime with grave consequences for Beatriz and her baby.23
The Supreme Court Proceedings
On May 15, 2013, the Supreme Court held a closed-door hearing. Beatriz arrived in an ambulance, accompanied by a caravan of trucks and cars bearing her doctors, representatives of the Ministry of Health, expert witnesses, and lawyers. The morning session was devoted to establishing the credentials of experts offered by both sides. The technicalities were strictly enforced. So strictly, in fact, that the court barred the testimony of the defense’s key expert on the grounds that he had brought only a copy, rather than an original, medical diploma. That expert was world-renowned Brazilian obstetrician Dr. Anibal Faundes, who was to have testified about international standard of care in cases involving lupus during pregnancy. Without his testimony, Beatriz’s lawyers lost their strongest testimony regarding the international standard of care that they had hoped to invoke in support of Beatriz’s need for an abortion.24