Her Body, Our Laws

by Michelle Oberman

  After the court heard arguments from both sides, it announced that it would render its decision within fifteen working days.25 To be sure, the case was a difficult one, forcing the justices to resolve what seemed to be an impasse between the competing rights to life of Beatriz and her fetus. On the one hand, abortion was banned. On the other hand, the Salvadoran constitution guaranteed the same fundamental rights to every person, including those not yet born. Still, fifteen days was a long time, and Beatriz’s health status was growing increasingly precarious.

  On May 29, 2013, the Supreme Court announced its opinion. In it, the court rejected Beatriz’s petition for an abortion, citing the IML’s conclusion that Beatriz’s right to life was not imperiled: she was receiving treatment according to “medical science,” consisting of hospitalization and constant monitoring to ensure that her health remained stable. Therefore, it concluded the state was adequately protecting Beatriz’s fundamental rights to health and life.26

  Key to the opinion is the court’s refusal to choose between Beatriz’s right to life and that of her fetus. Although the court acknowledged the possibility that, at some point in the future, these rights might come into conflict, it took pains to avoid privileging one life over the other.27 Instead, it instructed the doctors to follow medical guidelines in determining the opportune moment for any intervention, noting that their decision should be based upon their clinical analysis of the best treatment to secure the lives of both the mother and the fetus.

  The Aftermath of the Legal Proceedings

  The court’s decision placed Beatriz’s doctors in what one of them called the “ridiculous” situation of “knowing that her life was going to be imperiled, yet having to wait until it actually was in order to save her.”28 Further complicating Beatriz’s medical status was the fact that Beatriz had delivered her first child via a cesarean section delivery. Although vaginal births are possible after cesarean section deliveries, in El Salvador, the risks of uterine rupture and other complications are considered too high. Thus, her doctors knew Beatriz would need a cesarean section, and yet they understood the law as barring them from scheduling one until Beatriz became medically unstable. Of course, once she was medically unstable, the cesarean section would be a complex and risky operation.

  Finally, when she was twenty-seven weeks pregnant, Beatriz began having pre-term contractions. Her doctors knew they couldn’t let her risk going into labor. They performed a cesarean section, and Beatriz’s baby girl was delivered. Beatriz bled more than normal after the surgery, but she was readily stabilized. Her newborn daughter was placed on life support in an incubator, where she died, five hours after she was born.

  UNDERSTANDING THE MEANING AND PURPOSE OF ABORTION BANS: WHAT WE LEARN FROM BEATRIZ’S CASE

  Try as I might to see another viewpoint, the outcome in Beatriz’s case seemed to me perverse. El Salvador forced Beatriz to wait until her life was in immediate danger before allowing her to terminate her pregnancy. The law increased the chances that she would suffer permanent damage to her vital organs; it forced her to endure months of physical pain and psychological distress. And all for the sake of a fetus that everyone agreed would never survive.

  A year after the decision, when it had faded from public view, I went to El Salvador to try to make sense of it all. I found doctors and lawyers on both sides of the conflict who were generous with their time and helped me to understand not only the reasons Beatriz’s case unfolded as it did, but also the purpose and significance of the abortion law itself.

  The Distinction Between a Life-Threatening Pregnancy and Imminent Risk of Death

  One of the most outspoken medical experts in support of the government’s position in Beatriz’s case petition was Dr. Carlos Mayora. Both during and afterward, he appeared on media outlets throughout El Salvador. An obstetrician in his eighties who’d worked for decades in private practice, Mayora’s white-jacket commentary conveyed grandfatherly authority. He gave so many interviews making the case for denying Beatriz’s petition to terminate her pregnancy that he became the de facto spokesperson for the opposition.

  I was determined to reach out and see whether he would be willing to talk to me about Beatriz’s case. After my attempts to reach him by e-mail failed, I screwed up my courage and called his office.

  “Dr. Mayora,” his gravelly voice announced, when his secretary put through my call.

  “Good afternoon,” I said, launching into my carefully rehearsed Spanish introduction. “I’m a law professor from California. I’m researching the well-known case of Beatriz and I’m coming to El Salvador in a few weeks and was wondering whether you might be willing to let me interview you.”

  “Bueno,” he answered. “Why don’t you send me a description of your study?”

  He had understood me. I was amazed and thrilled.

  “Certainly, and I have explained it all in Spanish. I speak well in person, but I get nervous on the telephone, so I would love to send you the details. What is your e-mail address?”

  “Well, that’s not necessary. You can send it to my office.”

  “Send it by mail to El Salvador? Are you sure? Is there someone else I could e-mail it to?”

  “That’s not necessary. Just send it to me.”

  When I got to his office, I saw my papers had arrived, in spite of my doubts about the reliability of the Salvadoran postal system. Mayora had also printed out a tall stack of my articles. As I offered my thanks for agreeing to meet with me, he motioned to them, saying, “See, we know who you are,” his face crinkling into a wide smile.

  He’d invited his friend Delmer Rodriguez, a constitutional law professor from the Superior School of Economics and Business, to join us. In addition to a brightly painted, wooden business-card holder, Rodriguez gave me a pocket-sized copy of the Salvadoran constitution.

  “Look at Article I,” Rodriguez pointed out, opening the small book. “It’s written here: life begins at conception. It’s a human being. We put it there in 1998 because it’s the most important part of our law—protecting human life.”

  “But it’s not simply a legal concept; it’s a scientific fact,” added Mayora, lifting a heavy volume from the books on his shelf. “It’s here in Williams Obstetrics. It’s an American book. Are you familiar with it? This one is in Spanish, of course, from 2008. But it says here, ‘There’s a unique DNA.’ The fetus is totally distinct from the moment of conception. It’s an individual and the law signifies this fact.”

  I had encountered the “separate DNA” argument before, when talking with pro-life advocates in the United States. As they see it, the fact that a fetus has its own chromosomal makeup proves that it is a separate individual. If it is a separate individual, it deserves the same rights as does any other member of the human community. Its location inside of its mother in no way diminishes its humanity.

  I understand their argument. I even agree with them that the fetus is in a sense “alive.” But I reject their conclusion that, because a fetus has a unique genetic makeup, abortion is always wrong.

  In my religious tradition, until a baby is born alive, it is not considered a separate human being. We don’t treat fetuses like other human beings. For example, although there is grief when a woman loses a pregnancy, we don’t have funerals or engage in traditional mourning practices for miscarried fetuses. My sense is that the same holds true for most other religions. So to my way of thinking, location matters: the fetus is alive and has a unique DNA, but until it is born, it is not a separate human being.

  In Beatriz’s case, her fetus never would survive outside her body. In the meantime, its location inside her body posed a serious threat to her life.

  “What I want to know,” I asked Mayora, “is why, if the mother’s life is in danger, it should be illegal to terminate the pregnancy? Not with the intention of killing the fetus, but in the double-effect sense. You know, where the goal is to save her life, but the only way to do so is to end the pregnancy.”

  I had lea
rned about the Catholic doctrine of double-effect years ago, when teaching medical ethics at a Catholic hospital in Chicago. In the context of abortion, this doctrine permits an exception to the general religious prohibition against abortion when the act is intended to save the mother’s life. In this case, because the goal is to save the mother’s life, the abortion has the double-effect of saving her life—a moral good—and the negative, but unwanted, effect of ending the fetus’s life.29 The doctrine seemed to me tailor-made for a case like this.

  But Mayora did not want to discuss Catholic ethics. Instead, he was interested in the way Beatriz’s case was being used to advocate for an exception to the abortion ban.

  “Her doctors found that the fetus lacked a brain, which is totally incompatible with life. It looked like a worm. In my judgment, the doctors thought in good faith that this girl was carrying a fetus that couldn’t survive,” he said.

  But he believed her supporters were exaggerating Beatriz’s condition in order to get the state to make an exception to its abortion ban:

  Her lawyers presented Beatriz’s case very dramatically. But she already had had a child who survived. And then she got pregnant again, in spite of the fact that the doctors had warned her to take precautions against pregnancy. She got pregnant again, and had been going to and from her doctors’ appointments by herself. She was living at home, seventy-five miles from San Salvador, but coming every week by public bus to her prenatal appointments. So she was healthy, you see?

  Then, the advocates, a group of radical feminists, took her away to a shelter of American women. Even though we, as an organization, offered her a private lodging. The feminist group said “no.” They had her isolated there, basically deprived her of her liberty, and made her an emblematic case. To make a law in favor of abortion.

  How can I describe Mayora so that you’ll understand why I failed to interrupt to press him for clearer answers? Surely a trained journalist or anthropologist would have managed to get to the heart of the matter. His crinkled eyes were blue, his hands enormous. The smile lines so deep they seemed sculpted. When he spoke of God, his deep voice grew quiet.

  I knew the advocates. They were not Americans, but Salvadorans. They had taken Beatriz into hiding in order to escape the media frenzy.

  I still couldn’t understand why, if he agreed both that Beatriz’s fetus was doomed and that it was only a matter of time until the pregnancy placed her life in danger, he nonetheless supported making her wait before terminating it.

  When I asked him why she needed to wait, Mayora responded that, at the time of her petition to the Supreme Court for an abortion, Beatriz’s medical condition was stable. And at the same time, her fetus was alive, its heart was beating, and it was growing day by day. Unless and until the pregnancy posed an “imminent threat” to Beatriz’s life, it was wrong to kill the fetus.

  Later, when I described this part of my conversation to Dr. Jorge Ramirez, the chief assistant to the minister of health, he bristled: “Ask them if those who survived the 9/11 attack on the Twin Towers were never in danger. Because they survived? They say things that are indefensible.”30

  I did ask Mayora at least one direct question, though: “If she’d really been dying, would you have supported her desire to terminate her pregnancy?”

  And he answered, “Yes.”

  I managed a lawyerly follow-up: “Have you ever treated a woman whose life was in danger as a result of her pregnancy?”

  “I worked for thirty-five years at Social Security—the country’s second-largest public hospital system, and also in the largest one, La Maternidad,” he answered. “I’ve been a doctor for fifty-five years. I believe medicine has grown in its capacity to respond to pregnancy-related problems. And in this case, when the Instituto de Medicina Legal evaluated Beatriz, it saw she wasn’t dying; that it had been a complete exaggeration.”

  The Law of Self-Defense and Beatriz’s Life-Threatening Pregnancy

  Long after the conversation with Mayora and Rodriguez, after meeting Fortin Magana and after parsing the Supreme Court’s opinion, I came to see how El Salvador interpreted the law of self-defense in Beatriz’s case. I was so distracted by the politics of the case—by the assertions of bad faith on both sides—that I forgot to pay attention to the law that ultimately permitted Beatriz’s doctors to interrupt her pregnancy.

  The legal principle of self-defense was evident in Mayora’s focus on whether Beatriz was dying. Because the fetus was considered as much a human being as was Beatriz, a justification for taking its life would arise only if and when the fetus posed an imminent threat to Beatriz’s life.

  By relying on the law of self-defense, El Salvador’s decision permitted doctors to save Beatriz’s life without in any way diminishing the moral status or the legal rights of her fetus. In El Salvador, after Beatriz’s case, life still begins at conception and abortion is still completely banned.

  Self-defense is an ancient legal principle, as much a part of US law as it is a part of El Salvador’s. The conventional definition provides:

  One who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary where he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger.31

  It doesn’t take a law degree to spot the slippery terms in this definition. Who’s an adversary? What’s immediate danger? And what’s unlawful bodily harm?

  El Salvador answered these questions in Beatriz’s case by acknowledging that the fetus would become an adversary at the point where Beatriz’s doctors could no longer stabilize her condition. At that point, when the risk of death was imminent, Beatriz’s fundamental rights to health and life would be deemed imperiled.32 As such, her doctors would be justified in interrupting the pregnancy, even if they killed the fetus in the process. Critically, the intention in intervening would be to save Beatriz’s life, rather than to kill the fetus. Indeed, the opinion directed them to employ all means of saving the baby’s life.33

  Had Beatriz’s case arisen here in the United States, the requirement of imminence might not have been interpreted so strictly. “The proper inquiry,” says one leading commentator, “is not the immediacy of the threat but the immediacy of the response necessary in defense. If a threatened harm is such that it cannot be avoided if the intended victim waits until the last moment, the principle of self-defense must permit him to act earlier—as early as is required to defend himself effectively.”34

  The Salvadoran Supreme Court’s opinion arguably allowed this option of early intervention to Beatriz’s doctors. The court said that it was up to her doctors to determine the precise moment when medical protocols demanded intervention.35 But because the opinion added that those protocols ought to be based upon evidence of “real and immediate risk to the life of the pregnant mother,” and because the risk of a miscalculation on their part meant possible criminal sanctions, Beatriz’s doctors elected to wait until her life hung in the balance.

  My hunch is that the Supreme Court struggled when applying the law of self-defense to a fetus. How odd to cast the fetus as an assailant against whom deadly force is justified. Unlike conventional adversaries, the fetus doesn’t do or intend anything toward its mother.

  Perhaps, too, the court was moved, in narrowing the scope of self-defense, by a sense that Beatriz was partly to blame for her predicament. After all, Beatriz became pregnant again, against medical advice, even though her first pregnancy almost killed her.36 My conversations with Mayora, Rodriguez, and Fortin Magana did not go deep enough to explore the possibility that they blamed Beatriz for her situation, but all mentioned the fact that she’d gotten pregnant a second time, in spite of knowing its risk to her health.

  The way they invoked her choice to get pregnant a second time reminded me of a familiar undercurrent in our debate over legalized abortion here in the United States: the idea that some women are more deservin
g of an abortion than others. It’s surprisingly common for those who would ban abortion to support exceptions in cases of rape and incest. The reasoning seems to be that these women had pregnancy forced on them when they were raped. Because they did not choose to have sex, they should not be forced to carry a pregnancy, regardless of the humanity of the developing fetus. I could spend pages exploring what’s wrong with the assumption that, by having sex, a woman waives her fundamental rights to protect her own health and safety, should she become pregnant.

  But in Beatriz’s case, such debates are unnecessary. Because, as you’ll see momentarily, Beatriz did not choose to become pregnant. Nor did she describe the sex leading to her pregnancy as voluntary.

  In the media and in the courtroom, Beatriz’s case was understood as a challenge to El Salvador’s abortion ban. But in order to take the true measure of the ban, so that we understand how much and how little laws governing abortion matter, we need to understand Beatriz as a human being, rather than merely an abstraction.

  BEATRIZ’S STORY

  Arranging to meet Beatriz was easy. Having spent four years researching abortion in El Salvador, I already knew many key players in Beatriz’s case. At 6 a.m., one June morning in 2014, I set out from San Salvador with Sara Garcia, one of the activists who’d advocated on her behalf.

  It took two and a half hours to get from the capital to the dirt road turnoff to La Gloria (pseudonym). It took another forty-five minutes to find the home of Beatriz’s mother, less than a mile away. The dirt road was muddy with the previous night’s rains. We traveled slowly, trying to stay in the ruts. A herd of bony cows moved slowly in front of us. A man on horseback rode behind them, randomly whipping the stragglers so that they lumbered to one side or the other, without ever clearing the street.