Her Body, Our Laws

by Michelle Oberman

  The push to enlist doctors in enforcing the abortion law succeeded. A 2006 survey of practicing obstetricians found that more than half (56 percent) of respondents reported having been involved in notifying legal authorities about a suspected unlawful abortion.15

  Inevitably, a country seeking to enforce laws against abortion will seek doctors’ collaboration. Women must turn to doctors when an illegal abortion goes wrong. Doctors are therefore in the best position to spot the crime.

  But there are serious problems with using doctors to enforce abortion laws. In reporting their patients, doctors break the law and violate the oldest of ethical principles—patient confidentiality. Furthermore, in the vast majority of cases, doctors cannot tell whether a woman has had an abortion or simply a miscarriage. Thus, their reports are based on hunches, rather than on medical evidence.

  Law, Ethics, and Doctors’ Reports to Police

  The obligation of safeguarding a patient’s secrets is ancient. For over twenty-four hundred years, medical doctors have embraced the precepts articulated in the Hippocratic oath.16 Recited at medical school graduations worldwide, one of the oath’s central tenets is the following pledge: “Whatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private.”17

  This principle is based in part on policy considerations. Confidentiality is essential to creating a solid doctor-patient relationship, dedicated to promoting the health and life of the patient. Doctors routinely treat patients whom they suspect or even know to have broken the law. The medical profession long has been clear that its job is to heal, rather than to work as agents of the police.

  In El Salvador, as in other countries, including the United States, the ethical obligation of confidentiality has been enacted into law; it is illegal to share patient information.18 A doctor who reveals her patients’ medical information commits both a civil wrong, for which a patient might sue, and a crime, punishable by imprisonment and the suspension of the doctor’s medical license.19

  Regardless of these ethical and legal precepts, it’s easy to understand why a doctor might struggle when encountering evidence of an illegal abortion. If you view abortion as the taking of a life, you might be willing to call the police, even if it means violating the norms and laws governing confidentiality.

  Salvadoran law supports such breaches of confidentiality by requiring doctors to report suspected crimes to the state.20 Because abortion is a “criminal act,” this requirement could be construed to mean that providers must report cases of unlawful abortion to police. Plainly, this was the interpretation the Salvadoran officials meant to convey when they toured hospitals in 1998.

  Legally, though, they were wrong. The law explicitly excuses doctors from this duty when the information is acquired in the course of a confidential doctor-patient relationship. The law states that “[d]octors, pharmacists, nurses and other health professionals must report unlawful criminal acts that they become aware of in the context of their professional relationship, unless the information they acquire is protected under the terms of professional secrecy.”21

  There is no conflict under the law, then. Doctors are required to maintain patient confidentiality.

  Still, when the state sends prosecutors to inform hospital personnel of the need to report patients they suspect of having abortions, one can understand why doctors might comply. What happened next was both inevitable and deeply troubling.

  The Diagnostic Challenge: Distinguishing Abortion from Miscarriage

  It’s almost always impossible, even for doctors, to tell whether a woman has had an abortion or instead simply suffered a common spontaneous miscarriage. Indeed, miscarriage is so common an occurrence that, in Spanish, there is no difference between the word for miscarriage and the word for abortion. Any interruption of pregnancy is termed an aborto. Although women in El Salvador, like women in the United States, tend not to speak openly about losing a pregnancy to miscarriage, when they do so, they say they’ve had an aborto. There is no other way to describe their loss.

  Throughout the world, as many as one in four pregnancies ends in spontaneous miscarriage.22 Miscarriage most often happens early in pregnancy—within the first twelve weeks. A woman having a miscarriage typically experiences what feels like a heavier period than normal, perhaps passing more blood and some blood clots, along with whatever fetal tissue remained in her uterus after the fetus stopped developing.23 A woman might seek medical care following an early miscarriage, in response to heavy bleeding or cramping, or because of the risk that her body hasn’t expelled all the fetal tissue.

  Herein lies the inevitable challenge for abortion law enforcement: in the absence of physical evidence such as trauma to the uterus, there is no reliable way to distinguish a woman experiencing complications from an illegal abortion from a woman who has suffered a miscarriage.

  Because doctors cannot distinguish a spontaneous miscarriage from an abortion, the government will lack the evidence necessary to support a conviction against women who have early abortions.

  Salvadoran lawyer Dennis Munoz, who has defended more women convicted of abortion-related offenses than any other lawyer in the country, explained it this way:

  Yes, there are many illegal abortions in El Salvador for sure. But how do you prosecute them without evidence? There’s a rule here called corpus delecti, which requires the state to prove a crime has taken place.24 It’s much easier to prove the crime if you have a body. To catch an early abortion, you need evidence that it’s provoked. Undissolved pills in the vagina or a perforated uterus. There has to be some evidence.

  Munoz’s observation helps explain why the law has generated a line of prosecutions against women who lost their pregnancies at or close to full term, rather than prosecute cases against women who took drugs or hired someone to terminate an unwanted pregnancy. What Munoz’s observation does not explain is why reports to police are generated almost exclusively from public hospitals. When El Salvador sought to enlist doctors in enforcing its abortion ban, only those working in public hospitals complied.

  The Cases: Public Hospitals, Poor Women, and Police Reports

  My hunch was that a doctor’s willingness to report a woman for suspected abortion would reflect his or her personal beliefs about abortion. It turns out that I was wrong.

  The first comprehensive investigation in El Salvador traced the origins of abortion prosecutions over the ten-year time frame from 2001 to 2011. By traveling across the country and visiting every criminal court, researchers identified 129 abortion prosecutions.25 A doctor’s report triggered the great majority of these prosecutions. Yet not a single one of these reports was made by a doctor in private practice, seeing a paying patient.26

  I wondered what might make a doctor at a public hospital more willing to act on suspicions, so I decided to try talking to a doctor who had made a report. This task was complicated because the doctors’ police reports are anonymous. In the end, I settled for interviews with two doctors: one whom I knew believed doctors should not report their patients, and the other whom I suspected of having reported a patient.

  Interview with Dr. Rosario

  Dr. Bernadette Rosario (pseudonym) was born into a medical family and raised in San Salvador. In her mid-forties, Rosario is a powerful woman who has served in the country’s Ministry of Health, as well as on the faculty of the country’s foremost medical school. Her office is in Colonia Médica, home to the country’s leading private medical practices. The neighborhood is only a mile or two from the public hospital where Beatriz waited out her ordeal. But whereas the entry to the public hospital was crowded with street vendors, ragged children, and dilapidated cars, Colonia Médica is tranquil. It consists of several tall buildings arrayed around a circular patch of grass. In the middle of the grass, a bronze statue of an enormous golden hand cradles a tiny baby in its palm.

  “Can
you tell me about doctor-patient confidentiality rights in El Salvador?” I asked at the start of our conversation.27

  I needn’t have worried about putting her on the defensive. Rosario looked me straight in the eye and answered, “Here, the right to confidentiality comes with a price tag. Patients at the private hospitals buy their privacy—no one ever reveals their secrets. You could lose your medical license and spend three to six years in prison for breaching patient confidentiality. And besides, they’re your patients—you know them, or their families, or their friends. Your reputation and your livelihood depend on them.”

  “What percentage of Salvadorans go to private doctors and hospitals?” I asked.

  “Three percent. Maybe five percent.” She smiled and shook her head when she saw the look on my face.

  I found it hard to believe that all the elevator buildings in the Colonia Médica, the medical offices, and the small specialty hospitals served only three hundred thousand of the country’s six million residents.28

  Rosario continued, “Eighty percent of Salvadorans get their care from public hospitals located throughout the country. The rest, mostly those who are retired or on pensions, get something in between.”

  I’m not naive about the difference between the quality of health care received by rich and poor Americans. Generally speaking, we too live in a tiered health-care system.29 Still, I wondered how poor women lost their right to confidentiality simply because they couldn’t afford to see a private doctor.

  “Why aren’t doctors in public hospitals worried about breaching patient confidentiality when they report women for abortion?” I asked.

  Rosario answered, “Well, a lot of doctors think they’re obligated to report women they suspect of having done something to terminate their pregnancies; they do it because they think the law says they must. And then there are those who report because they really believe it’s a terrible crime to terminate a pregnancy and they want to see the law enforced. And, of course, doctors in public hospitals typically are young, hoping to build a reputation and then to start a private practice. They’ll do what they need to do to avoid conflict with their nurses or their superiors.”

  “Do women know the public hospital doctors might report them?” I asked.

  “It depends,” said Rosario. “Some of them are savvy enough to know exactly what sort of things separate the public from the private hospitals. But my guess is that most women don’t know. No one talks much about abortion or the law, and even if they knew, poor women seek care at public hospitals simply because they’re bleeding to death and they have no other option.”

  Rosario had done little to conceal her opinion that patient confidentiality should preclude abortion reports to police. But then, she was allied with the opponents of the abortion law. I’d gotten her name from the activists working to overturn the ban. I wondered if health-care providers who supported the ban, who believed abortion was murder, nonetheless felt bound by patient confidentiality.

  Dr. Diaz’s Interview

  There is a stigma to breaking the Hippocratic oath, which is at the heart of how doctors understand their ethical obligations to their patients. So I knew it would be difficult to find a doctor willing to speak openly about breaching patient confidentiality. Moreover, because abortion indictments and prosecutions are unpublished, I lacked easy access to the names of doctors who served as witnesses in these cases. I caught a break here, although I didn’t know why until later.

  In 2002, Dr. Marvin Diaz (pseudonym) was a young attending physician working in the emergency room of a public hospital while training as an obstetrician.30 There, he treated a woman named Karina Climaco, whose mother had brought her in; she was hemorrhaging and passing blood clots. Diaz examined Karina and found evidence of both uterine enlargement and placental tissue in her vaginal cavity. According to Karina, after the examination, Diaz called the police. Within hours of her admission to the hospital, police arrived at Karina’s mother’s apartment, searched her home, and found the cold body of a newborn baby.31

  Karina was later convicted and imprisoned before being exonerated when her defense lawyers proved she had a spontaneous miscarriage. The case received considerable publicity, and I was able to review the transcript, where I found Diaz’s name.

  After a number of false starts, I found Diaz’s contact information. At first, he insisted I had the wrong person; his surname is common in El Salvador. I persisted, though, and after some back-and-forth, he agreed to meet with me. I didn’t understand why until I got to his office.32 There was a Jewish candelabrum on his otherwise empty desk.

  Surprised, I asked, “What’s this for?” There are no more than a hundred Jews living in El Salvador.33 Diaz responded that he was a Converso, descended from a long line of Jews who ostensibly converted to Catholicism during the Spanish inquisition of 1492, and who survived by hiding their religious identity and practices.34 He said he’d guessed I was Jewish from my name. He had guessed correctly, although I’d never considered my surname, invented at Ellis Island two generations ago, to be particularly Jewish.

  “That’s why I agreed to meet you,” he told me. We chatted a little in broken Hebrew and, oddly moved, I turned to the conversation at hand.

  Diaz remembered the sequence of events around the reporting differently than Karina had: “It was her mother who found out about the baby when she noticed blood underneath the bed, and it was the mother who pressed charges. In any case, all we did was come and perform some tests to figure out if the woman had been pregnant. It didn’t mean we were going to call the police, but somehow the police got there at that moment.”35

  “Would you have reported her, though?” I asked.

  “No,” he answered, “we are supposed to protect what our patients tell us and we do.”

  “Even though the law says that you have to report it?” I asked.

  “Yes,” he answered. “And I have to be sincere with what I am about to say. In El Salvador, the law is not applied to everyone, but rather only to certain individuals. For example, in private hospitals, things are done where no one really knows what happened except for the doctor and the patient.”

  Diaz is now in private practice; his office is in the same neighborhood as Rosario’s. I wanted to probe Diaz’s comfort level with the outright ban on abortion.

  “How does it feel as a doctor to see a ten-year-old girl, pregnant as the result of incest?” I asked.

  “The law here is very strict,” he replied. “It says that you can never terminate a pregnancy. There is never an extenuating circumstance. . . . In my medical view, I’d say it was worth it to allow her to have that baby. I’ve seen people for whom it was hard during the pregnancy because of situations like those, but when the baby is born, the woman’s life is completely transformed. I’ve seen women who come to me and, well, yes, they do need support, and that’s what they don’t have here. You can have a difficult situation, but as long as you’re supported, you will continue to go forward. You’ll be able to overcome any obstacle.”

  My conversation with Diaz shook me at many levels. It was oddly refreshing to meet someone who supported the abortion law. He was not troubled by the law’s failure to make exceptions in “hard” cases like incest, which after all have nothing to do with the fetus’s moral status. Instead, he was bothered by the hypocrisy that permits wealthy women to evade the law.

  Diaz saw abortion as murder.

  Yet, even though he supported the abortion ban, Diaz was unwilling to acknowledge that he’d ever divulged patient confidences, even in the past. He did not want credit for having alerted the police about Karina’s dead baby. Instead, he gave me a flimsy story about how it might have been her mother who called the police.

  What bears noting is that both Diaz and Rosario portrayed medical confidentiality as a commodity. Rich women buy their privacy from private doctors. Poor women arrive at the country’s public hospitals too broke to go anywhere else. They lack the funds to ensure their secrets will b
e kept private.

  The story of how abortion is prosecuted in El Salvador begins with this reality: doctors at public hospitals call the police and poor women are prosecuted.

  POOR, INNOCENT WOMEN ACCUSED OF ABORTION CRIMES

  It helps to remember Diaz’s patient, Karina, as we move from the subject of detecting abortion to considering the third consequence of banning abortion in El Salvador: innocent women were prosecuted and convicted of abortion-related crimes.

  Karina was reported to police on suspicion of illegal abortion after Diaz treated her in the emergency room of the public hospital. She was hemorrhaging, and the size of her uterus plus the presence of a placenta (also referred to as the afterbirth) left no doubt that she had been pregnant. Where was the baby?

  Cases like hers make up over 50 percent of the cases brought against women for abortion.

  The Typical Abortion Prosecution in El Salvador

  At first, it’s hard to see why the crime of abortion would generate cases like Karina’s, which involve a dead full-term fetus. The answer lies in what we already know. First, it is hard to detect early abortion. Second, when there is physical evidence that a woman has recently delivered a baby, doctors naturally may suspect foul play. Because there is evidence to support their suspicions, they are more willing to notify the police.

  The comprehensive study of all abortion-related prosecutions in the decade between 2001 and 2011 found 129 cases in which women were investigated for abortion-related offenses.36 That is a lot, if one pictures each prosecution in all its complicated, intimate messiness. But honestly, I was surprised to find that even in a country unequivocally committed to enforcing criminal laws against abortion, there were seldom more than ten or twelve prosecutions a year.