Her Body, Our Laws

by Michelle Oberman

  More puzzling still was the fact that close to half of these investigations ultimately did not involve the crime of abortion at all. Instead, these investigations and arrests involved fetuses at or beyond seven months’ gestation at the time of their deaths.37 These are hardly the sort of cases that come to mind when one thinks about making abortion a crime.

  These late-term cases wind up playing a larger and larger role as abortion investigations work their way through the Salvadoran criminal justice system. Not all abortion investigations turn into cases that get prosecuted, of course. More often than not, prosecutors opt not to pursue criminal charges. Some cases do move forward, though, and at this point, we see the most startling pattern emerging in the abortion prosecutions: they aren’t about abortion at all.

  Of the forty-nine Salvadoran women arrested for abortion, only thirteen ultimately were convicted of that crime. Salvadoran law distinguishes between abortion and homicide, treating as homicide any case involving a fetus beyond seven months’ gestation. Thus, if it turns out the fetus was beyond seven months’ gestation, the charges against the woman are elevated from abortion, which is punishable by two to eight years imprisonment, to homicide, which carries a maximum sentence of fifty years in prison. Of the forty-nine women originally charged with abortion, thirty-six were convicted of aggravated homicide.

  The typical abortion prosecution in El Salvador doesn’t look at all like what I’d expected. Rather than involving women who obtained early, illegal abortions through the black market, the cases involve women accused of deliberately killing their newborns after delivering them at home.

  These cases evoke a visceral revulsion with which I am familiar. The facts behind these prosecutions aren’t all that different from some of the cases in the United States involving mothers who kill their children. Here, too, the cases involved mothers who denied or concealed their pregnancies, unattended births, or babies who died after being delivered in toilets. Here, too, the mothers were charged with homicide.

  But in these cases in El Salvador, the only crime the mothers seem to have committed is being desperately poor and pregnant, and losing a baby after delivering it at home.

  I’ll confess that I did not feel much sympathy for these women at first. Perhaps their doctors violated confidentiality, but surely the possibility that a woman has killed her newborn merits a police investigation at the least.

  Munoz, the Salvadoran defense lawyer, persuaded me I was wrong.38 In case after case, the Salvadoran criminal justice system has wrongly convicted poor women of homicide when the only evidence against them was that they had a late miscarriage.

  To help me understand the connection between abortion laws and the criminalization of miscarriage, in March 2012 Munoz took me to meet Christina, a former client.

  From the Hospital to the Prison: Christina’s Story

  We visited Christina at her grandmother’s home in El Transito, a village two hours outside San Salvador. She began her story at the point when she was seventeen and expecting her second child. Several months into her pregnancy, she and her three-year-old son left El Transito and moved to San Salvador, living in the second bedroom of her mother and stepfather’s apartment so that Christina would be close to the public hospital when her baby came.

  It was Saturday, October 23, 2004. Earlier that week, Christina and her mother had shopped for new linens and baby clothes, having decided to spend money on the baby rather than on a baby shower. As her mother prepared to leave for work, Christina mentioned that she’d had diarrhea earlier that morning. Neither she nor her mother was alarmed, though. Christina had had stomach problems regularly since her appendix burst, about a year before, and her baby wasn’t due for another month or so.

  After dinner, when her mother returned from her shift at the tortilla factory, Christina mentioned that her stomach was upset. She lay down on the bed she shared with her three-year-old son. She felt sick, but it didn’t feel as if she was having contractions; she knew because she remembered how they’d felt.

  Several hours later, she got out of bed and told her mother she couldn’t sleep. Her mother made her some tea with sugar.

  In the middle of the night, Christina awakened with an urge to go to the bathroom. She sat up in bed and felt a sudden, tremendous pain. The apartment was small, so she managed to get to the bathroom by dragging herself, one hand on each wall. The pain was so intense that she felt she was suffocating. The last thing she remembers is struggling to push open the metal bathroom door.

  She woke up in a hospital bed where a woman stood over her demanding, “Y el bebé?” (“And the baby?”). As she emerged from the fog of anesthesia, three guards stood at her bedside, asking, “What’s your name? Where do you live? How many months pregnant were you?” She kept falling asleep, and they kept shaking her awake, saying, “You have to answer us.”

  Over the course of long hours of interrogation, she learned that her baby had died. After getting a call from the doctors, police had searched Christina’s mother’s apartment and found the body in the mess of blood and towels left behind when her mother dragged Christina to the neighbor’s waiting truck so they could drive her to the hospital.

  Christina had experienced what doctors call “precipitous labor and delivery,” in which there is a sudden onset and rapid progression of the birth process.39 Doctors don’t always know why this happens, but one expert on the subject, Dr. Anne Drapkin Lyerly, a professor and obstetrician at the University of North Carolina, offered several explanations for what might have caused Christina’s miscarriage.

  “My first guess,” she said, “involves infection. The fact that she had ongoing gastrointestinal problems is a common sign of infection. In pregnant women, such infections can spread to the amniotic sac, leading to precipitous delivery and/or miscarriage.”40

  Lyerly noted that a quick pathology investigation of the placenta would have revealed the presence or absence of infection. In Christina’s case, no such examination was performed. It’s not clear whether the government would have paid the costs for such testing, given Christina’s impoverished status and her reliance on a public defender. It’s not even clear that doctors or prosecutors bothered to preserve her placenta as forensic evidence. The issue is moot, though, as Christina’s lawyer never made the request.

  Instead, after two or three days at the hospital, Christina was arrested on suspicion of abortion and was transferred, handcuffed and still bleeding, to the police station just outside the women’s prison in the city of Ilopango. After a week of interrogations and after the coroner determined that the fetus was beyond seven months’ gestation, Christina was charged with homicide.

  At her preliminary hearing, the prosecutor argued that Christina must have known she was in labor because she had already had a child. Once a woman experiences labor pains, he claimed, she cannot mistake them for any other sort of pain. Christina killed her child, the state alleged, by not telling someone she was in labor.

  The presiding judge told the prosecutor to respect Christina’s loss. He dismissed the case for lack of proof.

  Fifteen days later, the prosecution claimed it had “new evidence,” although Christina’s defense team never learned what it was, and Christina’s case was reopened. She was assigned a new public defender, whom she didn’t meet until the day of her preliminary hearing. Once again, the state had charged her with homocidio culposo—our version of manslaughter. The crime carried a potential sentence of two to eight years. This time, the judge let the case go to trial.

  At trial, her new lawyer failed to object when the judges decided to convict Christina of a far more serious crime than the one with which she had been charged: homicidio agravado, or aggravated homicide. The judges justified this heightened penalty by referencing the innocence of the victim, and by once more invoking the notion that, as an experienced mother, Christina must have known she was in labor.

  Christina was convicted on the theory that, by failing to get medical help, she cau
sed her baby’s death. Aggravated homicide (homicidio agravado) carries a much higher penalty than manslaughter (homicidio culposo), and Christina was sentenced to thirty years.

  I asked Lyerly what she thought of the state’s claim that Christina must have known she was in labor.

  “There’s no logic to the court’s position,” she said.

  There was no reason why she should have known it was labor, and a lot of reasons why she shouldn’t have—her history of gastrointestinal trouble actually means she was unlikely to know it was different; women deliver precipitously all the time; vaginal birth changes the musculature such that later deliveries tend to be much faster than first-time births. And given that she was a month away from her due date, she was more likely to think she was not in labor.41

  Inside Ilopango, the women’s prison, Christina met eight or nine women convicted of abortion-related crimes. Amid the hundreds of women imprisoned in the crowded women’s cells of Ilopango, they stuck together.

  Like all prisons, Ilopango had a social hierarchy. According to Christina, the drug traffickers and mass-murderers were treated the best. The other inmates applauded them. The worst treatment, by contrast, was reserved for those who had killed their children. “Te comiste a tus hijos” (“You ate your children”), they called out in passing to her and to the others incarcerated for abortion-related offenses.

  After almost two years in prison, one of the other abortion inmates introduced Christina to Munoz, who was her lawyer. Munoz quickly spotted the judicial error in Christina’s case. In El Salvador, as in the United States, judges are not permitted to revise the charges against a criminal defendant. Only the prosecutor can determine what crimes to charge.

  Munoz submitted a motion seeking a new trial, arguing the court had overstepped its bounds by convicting her of a crime with which she had not been charged. The state quickly responded, offering to release Christina for time served. Christina was happy to go home to her son and her family, and opted not to seek a new trial and the chance to clear her name.

  For Munoz, Christina’s case was just one among a score of similar cases, one in which justice came relatively easily.

  Late Miscarriages, Wrongful Convictions, and Implications for the Abortion Ban

  In El Salvador, the battle over the abortion ban increasingly focuses on cases like Christina’s. The problem of wrongful convictions in such cases emerged as a surprise finding of the 2009 conference between Nicaragua and El Salvador, convened by opponents of the abortion bans in both countries. Few in attendance anticipated that they would work on cases of women who never wanted to terminate their pregnancies in the first place. Yet the stories told by defense lawyers like Munoz made it clear that, in El Salvador, cases like Christina’s had become commonplace.

  To be sure, before the 1998 ban, women were convicted of homicide in cases involving dead newborns. But those cases did not originate in calls to police from public hospitals involving women who had had late-term miscarriages. Instead, they involved babies whose bodies, when found, showed signs of having been born alive.

  At first, abortion-rights activists struggled over whether to work on this type of case, rather than strategizing ways to overturn the ban. After all, they had joined together with a specific goal: persuading the government to make exceptions to the ban. The activists call themselves the Agrupación Ciudadana por la Despenalización del Aborto Terapéutico Ético y Eugenésico (Citizens Group for the Decriminalization of Ethical, Eugenic and Theraputic Abortion), or the Agrupación Ciudadana, for short. Their wordy name reflects their goal of reinstating the abortion law that governed the country prior to 1998: a ban with the exceptions for cases involving rape, incest, fetal anomaly, or threats to maternal life or health. The group comprises lawyers, academics, students, and activists, who write grants to fund their work, which originally consisted of social media publicity and street-level activism, such as parades and protests.42

  As I learned from one of the group’s founders, Morena Herrera, many felt disturbed by cases like Christina’s and worried they were a distraction from the battle over the abortion law.43

  Eventually, though, the Agrupación Ciudadana dedicated itself to defending these women and to protesting the pattern of wrongful convictions.44 Its lawyers undertook an investigation of the cases of all the women incarcerated on abortion-related offenses.

  On April 1, 2014, the Agrupación Ciudadana submitted seventeen petitions to the legislative assembly, each of which demanded a legal pardon for a woman serving a sentence for an abortion-related homicide. The seventeen cases included every Salvadoran woman then incarcerated for abortion-related homicide.45

  According to Munoz and his colleagues, there was not a single guilty woman among those who had been imprisoned for these crimes since 1998. It is a stunning claim. Yet the facts behind their cases are so similar as to be interchangeable. If it could happen to one woman, why not seventeen?

  Each of the seventeen women was serving a sentence of between thirty to forty years. The majority were poor, uneducated, and young; over a quarter were illiterate and over half had not made it past third grade.46 All had experienced obstetrical complications at some point during their pregnancies, resulting in late miscarriages. They gave birth unattended. Their newborns were stillborn or died shortly after birth. The women bled so heavily that they sought care at a hospital, where they were arrested.

  The Campaign for the 17, as it is known in El Salvador, has had surprising success. On January 22, 2015, the legislative assembly announced its decision to pardon Guadalupe, one of the seventeen women.47 It was one of the only pardons issued by the government in years, owing in part to the fact that in order to pardon a crime, the state must acknowledge its own error.

  Scarcely a month later, the Agrupación Ciudadana secured another victory, this time for a woman who had been incarcerated after her doctor reported her to police for a suspected abortion. She had been sentenced to thirty years in prison for having brought about the death of her five-month-old fetus. In April 2015, after she had served fifteen months in prison, the judge found that her doctor had violated the obligation to maintain patient confidentiality and, in addition, that the prosecution had failed to prove that the baby had been born alive.48 In May 2016, a third woman—Maria Teresa Rivera—was released after serving four years of a forty-year sentence, when the state acknowledged lack of evidence of live birth or criminal intent.49

  These cases are travesties. It is almost too painful to imagine what it feels like to go into labor suddenly, alone, far from the hospital. To be carried to the hospital, hemorrhaging and in pain, having lost the pregnancy. To arrive there only to be accused of killing your baby, by a state that never had evidence the baby was born alive, let alone that you intentionally killed it.

  It is hard for a legal system to admit that it got things wrong. So these exonerations are a tribute to the Salvadoran legal system, as well as to the Agrupación lawyers. Yet these victories remain exceptions. The 2014 legislative assembly rejected the pardons of the remaining fourteen women, in some cases without comment, in other cases giving explanations such as “risk of recidivism due to poor social status and lack of education.”50

  The Agrupación Ciudadana continues to fight, but it seems that for every woman whose freedom it has secured, there are several more women newly convicted. By 2015, Las 17 had become twenty-four, which was the grand total of the original seventeen, minus three, for the women exonerated, and plus eight for the newcomers. Munoz and the other Agrupación lawyers know all the newly convicted women. The facts of their cases are familiar by now. But the work of overturning their convictions proceeds slowly, case by case.

  ASSESSING THE CONSEQUENCES OF BANNING ABORTION

  What are we to make of what has happened in El Salvador under the abortion ban? The effort to assess the law’s consequences feels like a charged, partisan endeavor. At the end of the day, it seems that abortion exists in a world in which, as Friedrich Nietzsche obser
ved, “There are no facts, only interpretations.”51

  I can’t tell you how to interpret the story I’ve told you. But I can assure you that it would be largely the same story, any place around the globe.

  Abortion Will Still Happen

  No one ever claimed that banning abortion would eliminate it. What’s surprising is that there is no evidence that banning abortion reduces the abortion rate. It is possible, of course, that the ban makes a difference at the individual level, leading some women to keep their unwanted pregnancies, rather than having abortions.

  But we know that there can’t be millions or even thousands of such women, because if there were, then we would see higher birth rates in countries with abortion bans than we do in similar countries with more permissive laws. We don’t. El Salvador’s birth rates are no higher now than they were before the ban, in 1998. Nor are they significantly different from those of their neighbors with more permissive abortion laws: Honduras, Costa Rica, and Panama.

  Banning Abortion Has an Impact on Women and Girls

  When abortion is illegal, it is unsafe. In El Salvador, scores of women die every year from illegal abortions.52 They aren’t the daughters of the elite, whose money helps them find safe, private ways to end their unwanted pregnancies. They are the women who live far from cities, in cinder-block homes with dirt floors and no running water. They are the women who continue to use coat hangers in the age of the Internet because they cannot afford to purchase abortion drugs online.

  In addition, banning abortion changes the lives of girls, who, because they cannot get an abortion, become mothers as teenagers. El Salvador has one of the highest rates of unwed teen motherhood in the world; a Pan American Health Organization report noted that one in four births in El Salvador is to women ages fifteen to nineteen.53