Her Body, Our Laws

by Michelle Oberman

  The village of La Gloria has only one road. There were no signs or numbers, but Garcia didn’t want to ask directions of the occasional neighbors for fear of calling attention to Beatriz’s family. Beatriz and her son had moved from the house of her husband’s parents and were staying with her mother, Delmy, for a while.

  Delmy’s high voice came over Garcia’s cell phone, guiding us to a bumpy lane that angled off the main road, then opened onto a clearing with two brightly painted churches and, farther down, five or six cinder-block houses. Finally, we saw her waving to us from across a muddy yard scattered with brick stepping-stones. Chickens patrolled the yard, clucking as we passed under a wire clothesline strung from an electricity pole.

  Beatriz waited in the doorway’s shadow, her eyes as enormous as a baby’s. Two impossibly small kittens played by her feet.

  “Come in, come in,” Delmy said, with hugs and a kiss on the cheek.

  My eyes adjusted to the dim room. Beatriz sat on one of the two red plastic lawn chairs, inviting Garcia and me to sit in the two hammocks that crisscrossed the room. Her mother unpacked the bag of groceries—rice, beans, corn flour, cookies, and tampons—that we’d brought from the “super” market in Zacatecoluca, the nearest town. I tried to engage Claudio, Beatriz’s two-and-a-half-year-old son, who was playing ball with a rectangular blow-up pillow. He kicked it around the room, until it went under the bed. He cried until Beatriz got up and coaxed it out with a broken umbrella. He’d hit his head some time ago on the bed’s metal underside and wouldn’t go under himself. After the fourth or fifth time, Beatriz ignored his crying and left the pillow ball under the bed.

  Claudio brought out his other toy, a plastic bowl in which he carried three ketchup packets. While Garcia tried getting him to say “one, two, three,” Beatriz, Delmy, and I chatted about children, theirs and mine. Delmy couldn’t believe that, at fifty-three, I wasn’t yet a grandmother. She’s forty-one and already has several grandchildren.

  As the sun angled slowly into their home, Beatriz’s sixteen-year-old sister arrived, carrying her eight-month-old son. Delmy gave her three dollars and sent her to the neighbor’s stand to buy Coca-Cola and some pupusas. She stayed and chatted for a while when she returned, then kissed her mother good-bye and left. Later, Beatriz’s fourteen-year-old sister emerged from behind the curtain that separated the small bedroom in the back from the house’s main room where we sat. She poured water over herself from a bucket in the outdoor basin, pulled on white knee socks, and then left for her three-hour school day. Still later, Beatriz’s eighteen-year-old brother arrived, carrying a clear plastic bag filled with scores of baby tilapia. He was hoping to raise them in the gray tub next to the latrine and maybe sell them one day.

  Beatriz leaned forward as I spoke, smiling as she got used to my accent. I tried sitting up in the hammock to create a lap for one of the kittens, and suddenly flipped over and fell onto the floor. Even Claudio stopped whining, and after a stunned moment, we all laughed. I dusted myself off—the cement floor was covered with a persistent layer of crisp gold sand, although we were miles from the beach—and took a seat in one of the chairs.

  Beatriz was ready to tell me her story.

  I already knew most of it. Her doctors had described the painful lupus sores, red and itchy, that began spreading all over her body. The way pregnancy escalated her disease, the trip to the experts in San Salvador, the ultrasound with its terrible news about the fetus. And everyone knew about the ensuing legal battle.

  What caught me by surprise was not the story she told, but Beatriz herself. She’d seemed entirely passive in the public story told about her case—a person to whom things had happened. Lupus. A fetus with no brain. A girl who got pregnant a second time, in spite of her doctors’ warnings. In person, though, she was not so much passive as she was trapped.

  The truth is that Beatriz chose not to get sterilized after her first child, Claudio, was born. At first it wasn’t clear whether Claudio would survive; he’d been delivered so early. She didn’t get sterilized then because she wanted the chance to have a child, in case Claudio died. Later, when Claudio came home, and it became clear that he wasn’t developing normally, her reasons for not getting sterilized grew more complicated.

  The truth is that her life was almost impossibly difficult before she became pregnant a second time.

  At her mother’s home, she and Claudio slept in the front room on a thin foam mattress over a sagging metal frame. There was no money for diapers, so she awakened night after night in a puddle of urine. Claudio didn’t speak and seemed unable to understand even basic commands. There were four other people sharing the two-room living space.

  Beatriz had left school at age fourteen. She’d never held a job, and no one she knew earned a regular income. And she was sick. Her lupus was so advanced that medications barely controlled her blood pressure. She was weak, easily tired, and at constant risk of stroke.

  There was no marked path, no clear way in which Beatriz could have stepped out of the life she was living and into one in which she had good options. Instead, she moved back and forth between her mother’s home and her in-laws’ home every few weeks.

  She moved because her husband beat her. Inside of the cinder-block house he shared with his parents, he hit her. Then she would leave him, taking Claudio with her. They would make up. She would move back. He would beat her again.

  She told me about his violence in passing, when I asked how she felt, now that her case was over and done with.

  “I feel guilty,” she said. “I know it wasn’t my fault that the baby died. But we were guilty for not having taken precautions.”

  “You feel guilty for having gotten pregnant?” I asked.

  “He didn’t take care,” she said, speaking softly. “We always have problems between us, so . . .”

  Beatriz’s voice trailed off, and I thought perhaps I needed to move on. But then she continued, “One day we fought. He knew that I couldn’t have children, but he told me that he wanted me to get pregnant anyhow, even though he knew what could happen. So he wouldn’t use a condom.”

  We had been talking for hours by this point. I didn’t know what to say. Telling her that she’d been raped, that getting pregnant wasn’t her fault, wouldn’t change how she felt. And my hunch was that, in her mind, she felt guilty because she didn’t get sterilized, even though she knew a second pregnancy might kill her. She knew what was at stake: she did not get sterilized because she feared that, if she did, she would lose her husband.

  Claudio stood in the doorway crying. Pee ran down his leg. Beatriz got up from the chair, reached for some newspaper from a stack near the door, and laid it on the wet spot.

  “Does it feel like it was a long time ago, when we talk about what happened?” I asked, hoping the present was so distracting that it might help her to forget the past.

  “No, it feels like it’s only a few days ago. It’s not the past.”

  Beatriz was crying in earnest now, but she had raised her eyes and was looking straight at me.

  “It’s made me want to be somewhere else. Like, I always want to be with my mother when I’m with my husband. And then I want to be with my husband when I’m with my mother. Sometimes, I feel desperate in all of my body, and I don’t want to be alive. But my mom tells me that I have to fight for the child that I have. God still wants me to be here, and my son needs me.”

  CONCLUSION

  At some point on the journey home, it occurred to me how little difference it would have made had Beatriz been granted an abortion at fourteen weeks. Of course, it would have been better for her not to have lain in the hospital for months, worrying about her son, her mother, her husband, and the possibility that she would die.

  But an early abortion, like the later induced delivery, would have offered no permanent relief from the things that made her life hard. Beatriz’s case meant more to the war over abortion than the abortion meant to Beatriz.

  To those who oppose the abort
ion ban, Beatriz’s case offered the perfect challenge to the ban’s legitimacy. Making an exception to permit Beatriz an abortion—whether because the fetus lacked a brain, or because her life was at risk, or both—would amount to an admission that the ban went too far. If Beatriz was allowed to end her pregnancy, there would be precedent for favoring a mother’s rights over those of her fetus. Her case would be the first of many.

  Those who supported the abortion ban understood this threat. This case was not about their conviction that Beatriz’s fetus was viable or could, by some miracle, survive. Mayora, the leading spokesperson in support of denying Beatriz an abortion, had said, “It looked like a worm,” and made no pretense about its chances for life.

  But they understood the risk of making an exception in Beatriz’s case.

  In the end, Beatriz’s case became a high-stakes game, played to a draw. Beatriz survived. But so did the abortion ban.

  I understand both sides. If a fetus or, for that matter, a zygote is a full member of the human community, the battle over abortion must be fought in an all-or-nothing manner.37 The law banning abortion is simply the legal embodiment of a moral truth. It is a declaration of membership in the human species.

  Using the law to make moral declarations is not unusual. It’s what legal theorists call the “expressive function” of the law.38 We use the law to tell us something about ourselves—who we are and what we value.

  Think of laws against prostitution, flag-burning, or organ-selling. To the extent one supports these laws, it’s often for reasons beyond or even aside from a belief that the law will prevent the crime from happening. Instead, we look to the law as a way of proclaiming moral boundaries. Supporters use the law to testify to a shared moral vision.

  But valuing a law because of the statement it makes does not mean that one doesn’t care about its impact. Consequences matter. So, for example, if evidence showed that a law against selling human organs had the effect of intensifying the exploitation and misery of the relevant vulnerable populations, one might reconsider his or her support for that law.

  Professor Cass Sunstein, in his leading work on the expressive function of law, suggests that the biggest challenge to symbolic laws arises when “the effects of such laws seem bad or ambiguous, even by reference to the values held by their supporters.”39 Only a fanatic, he reasons, would completely ignore the law’s impact on the norms and values it aims to promote.40

  Until I began my travels in El Salvador, I did not fully appreciate the moral position that life begins at conception, and the ways in which that moral conviction might lead inexorably to supporting a complete ban on abortion. But as Sunstein notes, the ultimate test of a law’s legitimacy, even of a law intended primarily to make a symbolic statement, lies in its consequences.

  It is not enough to assert that a law’s consequence is good simply because it makes a good statement. That circularity is a fanatic’s position.

  Beatriz’s case was, by all accounts, extraordinary. In the next chapter, we turn to the subject of ordinary abortions and of the measurable consequences of El Salvador’s endeavor to outlaw them.

  TWO

  ASSESSING THE IMPACT OF EL SALVADOR’S ABORTION BAN

  In 1998, El Salvador passed a law banning abortion under all circumstances.1 Until that point, abortion was illegal except in cases involving risks to maternal life, severe fetal anomaly, and rape or incest. Since then, El Salvador has worked to enforce its ban, mounting an intensive effort to identify and prosecute those who violate the law. If we’re hoping to understand what happens when abortion is banned, El Salvador is the perfect place to study.

  Regardless of whether one favors or opposes the abortion ban, it is vital that we assess the law’s impact. Recall Cass Sunstein’s observation at the end of the last chapter that a law cannot be justified merely because one likes its message. Even if we like the message of the law, it is valid only to the extent that it produces results that are consistent with its message.

  So what happened when abortion was outlawed in El Salvador? The evidence shows us that three things occurred: (1) abortion remained commonplace and rates did not drop even though it was illegal; (2) doctors become involved in law enforcement; and (3) innocent women were accused and convicted of abortion-related crimes. These three systems—the black market, health care, and criminal justice—all yield measurable consequences of the ban on abortion. And, as I explain below, in spite of the vast differences between El Salvador and the United States, there is good reason to expect that the United States would experience each of these three consequences were it to outlaw abortion.

  ABORTIONS STILL HAPPEN

  Perhaps the most surprising thing about banning abortion is what doesn’t happen when abortion becomes a crime. Abortion does not go away. Indeed, the rates of abortion in countries with the most restrictive abortion laws are higher.2

  This is true in El Salvador: by the Salvadoran government’s own measure, there are tens of thousands of illegal abortions every year.3 Indeed, the rate of abortion in countries with restrictive abortion laws far exceeds that of countries with far more liberal laws, such as the United States.4

  The correlation of high abortion rates and restrictive abortion laws does not mean that abortion bans cause more women to have abortions. Any number of factors might cause these two things—abortion bans and high abortion rates—to go together. Perhaps these countries share a religious or cultural discomfort with contraception, as well as abortion. Perhaps it is hard to get contraception. Perhaps there is little sex education.

  There is one thing we know for certain: abortion doesn’t simply go away when it is made illegal. Because abortions are illegal, it is hard to get a complete picture of how women obtain them in El Salvador. What is clear beyond a doubt is that the advent of abortion drugs has completely altered illegal abortion.

  Until recently, abortions were exclusively surgical procedures.5 Doctors would terminate pregnancies by opening the cervix and suctioning or scraping out the contents of the uterus. Women unable to find or afford a doctor to perform an illegal abortion might try bringing on a miscarriage themselves, for example, by inserting a sharp object into their uterus. Opening the cervix typically is enough to induce a miscarriage, although it carries with it high risks of excessive bleeding and infection.

  Historically, these so-called “botched” abortions provided the only proof of the crime of illegal abortion. Coat-hanger abortions, for example, were notorious in pre-Roe America, in part because they carried a high risk of perforating a woman’s uterus, leaving behind the telltale sign that the woman had deliberately ended her pregnancy.

  Beginning in the 1990s, with the advent of abortion drugs, illegal abortion became safer and harder to detect. Taken in the appropriate dose, at the right point in pregnancy, the drug known as Mifeprex or RU-486 (mifepristone is the generic name) will safely end 98 percent of pregnancies.6 Side effects include excessive bleeding or incomplete abortion, both readily resolved by a visit to a doctor.7

  Although they are not always safe or effective, especially when taken too late in pregnancy or at the wrong dose, compared with the risks of an illegal surgical abortion, drugs such as RU-486 or Mifeprex have completely altered women’s access to illegal abortion.8 In many countries, women find it easy to buy misoprostol, a drug conventionally used in treating gastric ulcers. It happens to be one of two of the drugs that, together, make up Mifeprex. Taken alone, misoprostol is slightly less safe and less effective than Mifeprex, ending between 75 and 90 percent of first-trimester pregnancies, as opposed to Mifeprex, which ends 98 percent of pregnancies. Still, the side effects of misoprostol, such as heavy bleeding or incomplete abortion, are minimal and easily treated, unlike those associated with incompetently performed surgical abortions.9

  In El Salvador, and throughout Latin America, women find it easy to access misoprostol via the Internet.10 In Brazil, for example, where abortion is illegal except in cases of rape, threat to maternal life,
or anencephaly (where the fetus lacks a brain), abortion drugs play a vital role in the thriving black market. An estimated one in five Brazilian women under age forty has had an abortion.11 Even in a poor country like El Salvador, almost everyone has a smartphone and, provided they have money and time, can go online to purchase the drugs that will end an unwanted pregnancy.

  To be sure, illegal abortion remains risky.12 Whether they use drugs or other means to terminate their pregnancies, many women experience complications from illegal abortion that necessitate medical attention. In Latin America, complications from illegal abortion constitute the leading cause of mortality in young women.13

  The inevitability of such complications has led to the second concrete change set in motion by banning abortions: doctors become entangled in the law enforcement process.

  DOCTORS AND THE PROBLEM OF DETECTING ABORTION

  If the first thing that happened when El Salvador banned abortion was the proliferation of illegal, black-market abortions, the second thing that happened was that doctors were enlisted in the law enforcement effort. The overwhelming majority of abortion cases in El Salvador begin in the hospital, with a doctor’s hunch that his or her patient has broken the law.

  In 1998, Salvadoran government officials charged with implementing the newly passed abortion ban reached out to doctors to encourage them to report patients they suspected of terminating their pregnancies. Dr. Alejandro Guidos, former president of the El Salvadoran Association of Obstetricians and Gynecologists, described the state’s approach. He told me, “Officials from the Fiscalia [the state prosecutors] went to the hospitals, advising doctors that they had a legal obligation to report women suspected of terminating their pregnancies. And the hospital directors supported the obligation to report. They collaborated.”14