Pregnancy and the 40-Year Prison Sentence

Using the case of El Salvador, this article demonstrates how the anti-abortion catchphrase “abortion is murder” can become embedded in the legal practice of state judicial systems. In the 1990s, a powerful anti-abortion movement in El Salvador resulted in a new legal context that outlawed abortion in all circumstances, discouraged mobilization for abortion rights, and encouraged the prosecution of reproduction-related “crimes.” Within this context, Salvadoran women initially charged with the crime of abortion were convicted of “aggravated homicide” and sentenced to up to 40 years in prison. Court documents suggest that many of these women had not undergone abortions, but had suffered naturally occurring stillbirths late in their pregnancies. Through analysis of newspaper articles and court cases, this article documents how El Salvador came to prosecute obstetrical emergencies as “murder,” and concludes that activism on behalf of abortion rights is central to protecting poor pregnant women from prosecution for reproduction-related “crimes.” Jocelyn Viterna, PhD, is a professor of sociology at Harvard University, Cambridge, Massachusetts, United States. Jose Santos Guardado Bautista, licenciado, is an attorney at the Fiscal General, San Salvador, El Salvador. Please address correspondence to the authors c/o Jocelyn Viterna. Email: [email protected]. Competing interests: None declared. Copyright © 2017 Viterna and Guardado Bautista. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited. Health and Human Rights Journal HHr HHR_final_logo_alone.indd 1 10/19/15 10:53 AM j. viterna and j. s. g. bautista / abortion and human rights, 81-93 82 J U N E 2 0 1 7 V O L U M E 1 9 N U M B E R 1 Health and Human Rights Journal Introduction Most forms of abortion have always been illegal in El Salvador, but historically, Salvadoran women were not prosecuted. However, after a successful anti-abortion mobilization in the 1990s culminated in an absolute abortion ban in 1997, and a constitutional amendment defining life as beginning at the moment of conception in 1999, the Salvadoran state began to prosecute women for abortion for the first time in recent history. Moreover, our data demonstrate that between 1999 and the present, at least 34 women, many of whom were initially charged with the crime of abortion, were eventually convicted for the “aggravated homicide” of their newborns and sentenced to 4–40 years in prison. Many of these women suffered naturally-occurring stillbirths. How did the Salvadoran judicial system transform from a state that largely ignored the crime of abortion to an aggressive prosecutor of women’s reproductive lives? How did poor women who suffered obstetrical emergencies come to be legally understood as criminals who “murdered” their own children? Analyzing 25 years (1989-2014) of newspaper articles from the largest daily Salvadoran newspaper, El Diario de Hoy; six interviews with key informants (activists and legislators); complete court documents from 16 women sentenced to prison for the “aggravated homicide” of a newborn; and sentencing documents from 53 abortion or newborn homicide cases uncovered through a review of judicial records in 12 of El Salvador’s 21 sentencing districts; this article examines how the familiar mobilizing cry of anti-abortion movements—“abortion is murder”—became deeply embedded within the Salvadoran legal and judicial process. El Salvador is not the only nation to imprison pregnant women for reproduction-related “crimes.”1 However, its corresponding penalties are among the most extreme in the world. Analyzing this extreme case allows scholars to better understand the conditions under which the idea that abortion is murder can become integrated into the written legal code, and the institutionalized judicial processes, of a nation. In the following pages, we first review information from the court cases of three Salvadoran women wrongfully charged with the “homicide” of their fetus or newborn to illustrate the judicial overreach currently occurring in El Salvador. Second, we present newspaper and interview data to provide an historical account of how anti-abortion discourses pressured the Salvadoran judicial system into adopting such aggressive prosecution tactics. Third, we demonstrate how these aggressive prosecution tactics permeate every level of the judicial process, from the doctors who attend the women during their obstetrical emergencies, to the police who arrest them, to the judges who condemn them for murder. Finally, we conclude that activism on behalf of women’s reproductive health is a key element in preventing states from prosecuting women for reproduction-related “crimes.” Three examples illustrating how naturally occurring obstetrical emergencies became “murder” in El Salvador Mirna, charged with attempted aggravated homicide In May 2002, Mirna was 34 years old, seven months pregnant, and poor. Although she had married at age 19, she and her husband still had no children due to a history of difficulties conceiving, miscarriages, and one premature birth of a child who died at four months old. This pregnancy again appeared problematic; Mirna suffered back pains and significant vaginal bleeding throughout. Feeling the urge to defecate, Mirna went to the pit latrine behind her house, only to accidentally birth her daughter into the latrine. Three neighbors quickly helped retrieve the child. The premature baby—a girl—was taken to the hospital, where she was diagnosed with sepsis and intrauterine growth restriction, but survived. According to doctors consulted for this paper, the medical factors associated with intrauterine growth restriction are also factors commonly associated with premature or precipitous births. Yet when the police arrived at Mirna’s house to take her and her baby to the hospital, they also captured Mirna for suspected abortion. By the time the case reached the courts, Mirna was charged with j. viterna and j. s. g. bautista / abortion and human rights, 81-93 J U N E 2 0 1 7 V O L U M E 1 9 N U M B E R 1 Health and Human Rights Journal 83 “attempted aggravated homicide.” The judge who found her guilty concluded, “This tribunal has no doubt that the defendant’s behavior was intentional, because who doesn’t know that throwing a newborn baby into a latrine could cause its death.” Mirna was sentenced to, and served, 12 1⁄2 years in prison. Her daughter is now 16 years old. Carmen, charged with aggravated homicide In October 2007, 18-year-old Carmen was working as a live-in domestic in El Salvador, making $80 per month. She was pregnant as the result of a violent sexual assault. Carmen went into labor on a Sunday, and self-delivered a small baby that did not move or cry. The next day, Carmen worked a full day despite continuing to bleed heavily. By the time her employer took her to the hospital, she was regularly losing consciousness from blood loss. The employers claimed to have not known Carmen had been pregnant although Carmen reports that the employers both knew she was pregnant, and also knew that the baby had died. The medical staff who attended Carmen realized she had given birth and reported her for suspected abortion. Like Mirna, the abortion charge was upgraded to aggravated homicide through the course of the trial. The autopsy of Carmen’s baby found “no external or internal evidence of trauma” on the body, and listed the cause of death as “undetermined,” noting that “with the available studies completed, it is not possible to determine the cause of death.” The autopsy also reported several abnormalities in the body, including incongruent height, weight, and foot measurements; vascular congestion in the heart; and the wrong number of veins in the umbilical cord. Despite clear medical evidence suggesting a stillbirth, and no evidence of a crime, the autopsy nevertheless classified the type of death as “violent.” At no point in the court documents did the forensic analyst provide any justification for this “violent” classification. The judge found Carmen guilty of aggravated homicide and sentenced her to 30 years in jail. In his written statement, the judge admitted frankly that there was no direct evidence of a crime, but said he was able to come to his decision through “the force of reason.” Maria Teresa, charged with aggravated homicide In November 2011, 28-year-old Maria Teresa lived with her six-year-old son and his paternal grandparents in a shack of corrugated metal located in a poor, gang-ridden suburb of San Salvador. Her son’s father had abandoned them years earlier, but she continued to live with and care for his elderly parents. She worked in a factory during the day, and supplemented her day job with house cleaning on evenings and weekends. Maria Teresa did not know she was pregnant, as she had been bleeding heavily throughout the pregnancy, and her stomach did not grow. In fact, she reports visiting the doctor twice during the pregnancy, once with pains in her lower abdomen, and another time with sharp pains in her back. The doctors diagnosed her with a bladder infection; even they did not suspect pregnancy. Maria Teresa woke one night with a strong thirst. While getting a drink of water, she suddenly felt an urge to defecate. She went to the pit latrine outside their home, and was horrified to feel what felt like a “little ball” fall out of her body. She cried out for her mother-in-law before passing out in a pool of blood. Her mother-in-law called an ambulance, and Maria Teresa arrived at the hospital in hypovolemic shock. The doctors, realizing she had given birth, reported Maria Teresa to the police for abortion. The state’s attorney upgraded the charge to aggravated homicide. Although the autopsy data indicated that the fetus likely died in utero and was then expelled, the judge nevertheless found Maria Teresa guilty and sentenced her to 40 years in prison. In his statement, he wrote that Maria Teresa must have known she was pregnant, so she therefore must have “decided to carry out her criminal plan within the area of her household, looking for a moment during which there weren’t any other persons around to carry out this homicide.” The cases of Mirna, Carmen, and Maria Teresa illustrate a transformation in Salvadoran judicial practice. After 1999, poor Salvadoran women who appear to have suffered naturally occurring obstetrical emergencies began to be prosecuted for the “aggravated homicide” of their newborns. To investigate the events accompanying this judicial j. viterna and j. s. g. bautista / abortion and human rights, 81-93 84 J U N E 2 0 1 7 V O L U M E 1 9 N U M B E R 1 Health and Human Rights Journal transformation, we analyze 25 years of national-level political developments, as reported through the Diario de Hoy newspaper, and as recalled by local activists and politicians. The birth of the anti-abortion movement in El Salvador In the early 1990s, El Salvador was in the process of negotiating a peace treaty to end 12 years of civil conflict between the socialist-inspired FMLN (Frente Farabundo Martí para la Liberación Nacional) guerrillas and the Salvadoran state. At this time, Salvadoran law only allowed legal abortions in three circumstances—when the life of the mother was at risk, when the pregnancy was the result of rape, or when the fetus had deformities incompatible with extrauterine life. Nevertheless, illegal abortion clinics operated relatively openly and without fear of prosecution. Although there was much political turmoil and debate at the time, changing abortion laws or increasing the enforcement of those laws, was not on the public agenda. From 1989 to the end of 1992, there was not a single reference to local-level abortion issues or activism in El Diario de Hoy. El Diario did regularly report on Pope John Paul II’s anti-abortion speeches while touring other parts of the world, but the reporters would mention the topic of abortion only in passing, focusing instead on colorful accounts of the city where the Pope was speaking. In 1992, the Salvadoran state signed peace accords with the FMLN guerrillas, and the FMLN was conferred formal status as a political party. It was also in 1992 that the first anti-abortion editorials and articles began appearing in El Diario. Yet it wasn’t until 1994 that the abortion agenda won significant attention from Salvadoran politicians. This was the year of the first post-peace accord elections, and the first time the new FMLN party could contend for formal political power. This was also the year that the United Nations planned its Population Conference in Cairo. El Diario reported on Pope John Paul II’s claims that the Cairo conference was the First World’s attempt to force abortion on poor countries in order to control their population. The anti-abortion movement in El Salvador quickly adopted the Pope’s discourse as their own. It was also at this moment that the local Catholic Church in El Salvador became a major player in the pro-life movement, bringing with it the ability to quickly mobilize thousands of individuals in the course of a weekend by making announcements to parishioners during mass. And Salvadoran politicians from two political parties on the right, ARENA (Alianza Republicana Nacionalista) and the PCN (Partido de Conciliación Nacional), began proposing that El Salvador could protect its sovereignty—and the lives of unborn Salvadorans—from UN incursion by passing stronger anti-abortion legislation. The Truth Commission created by the 1992 Peace Accords recommended a revision of the country’s existing criminal code. In 1997, the Foundation Yes to Life presented a formal request to the legislative assembly to ensure that the new criminal code did not allow any exceptions to abortion— even for the life or health of the pregnant woman. It further launched a powerful media campaign, and El Diario de Hoy published numerous graphic editorials promoting the “abortion is murder” meme. Articles with titles like “The horrors of abortion” erroneously detailed how “abortionists” cause “babies” torturous pain in their mother’s womb by tearing them apart, limb by limb, even in the earliest weeks of pregnancy.2 (The current consensus in the medical community is that a fetus cannot feel pain prior to the 24th week of gestation.)3 The Archbishop of San Salvador, Fernando Saénz LaCalle, publicly compared abortion to the “Nazi death camps.”4 The Catholic Church mobilized thousands of school children from parochial schools and bussed them to the legislative assembly to rally for the total abortion ban.5 Professional organizations like doctors’ unions issued statements in favor of the total ban.6 The new minister of health claimed that regardless of what law was eventually passed, he and his doctors would not practice abortions.7 Resistance and resignation Despite powerful anti-abortion mobilization, the newly created FMLN political party initially stood j. viterna and j. s. g. bautista / abortion and human rights, 81-93 J U N E 2 0 1 7 V O L U M E 1 9 N U M B E R 1 Health and Human Rights Journal 85 firm in its support for maintaining the legality of abortion when a woman’s life was in danger, when a woman was raped, or when the fetus had deformities that would not allow it to survive outside the womb. The party called on the Salvadoran government to prevent abortion, not prohibit it, and they sought to turn the discussion to the economic dimensions underlying unwanted pregnancies. Prominent feminist organizations supported the FMLN position by speaking out against the total abortion ban, and providing scientific and social evidence supporting abortion rights to the legislative assembly.8 In 1997, the FMLN voted as a party against the total abortion ban, but they had insufficient votes to prevent its passage. The new criminal code eliminated all legal options for abortion, and extended the criminal sentence for women who consent to abortion to two to eight years in prison. The new criminal code also introduced a new crime: abortion accomplice. Specifically, the law states that anyone who induces a woman or facilitates with economic or other means the ability to have an abortion in El Salvador can be sanctioned with two to five years in prison. Importantly, although it outlaws both “abortion” and “facilitating abortion,” the criminal code provides no legal definition for either term. Immediately after the total abortion ban was passed, Archbishop Lacalle sent a letter to the legislative assembly stating that it was not sufficient to outlaw abortion in the criminal code; a constitutional amendment defining life as beginning from “the very moment of conception” was also needed.9 The right-wing party ARENA responded immediately, using its legislative majority to push the first of two required votes to amend the constitution to recognize fetal personhood. The FMLN again voted as a party against the reform, but again did not have enough votes to block its passage. Despite their professed concern to protect unborn life, ARENA deputies waited two years before putting the second constitutional amendment vote on the agenda. Their strategy was clear: they waited to introduce the issue until immediately before the next election cycle, so that the FMLN would again be forced to defend abortion publicly during a critical campaign moment. Public opinion in El Salvador appeared strongly in favor of the amendment. El Diario reported that activists collected a remarkable 600,000 signatures and mobilized tens of thousands of protestors to support the amendment. In the wake of this powerful organizing, the FMLN decided to allow its deputies to vote their conscience, and to no longer promote a party line supporting limited abortion rights. Feminists, who had supported the FMLN position throughout the debate, were disappointed. The personhood amendment passed with the majority of FMLN members casting positive votes, and a minority abstaining. After the vote, several FMLN leaders also made public statements celebrating the constitutional protection of fetal life. This vote marked a change in FMLN strategy that had profound implications for the abortion rights movement in El Salvador. Not only did the FMLN disengage with the issue of abortion, but some deputies also urged their feminist allies to drop their public support of abortion. With a few important exceptions, feminist organizations concurred. Salvadoran feminists interviewed described the next eight years as a period of “self-censorship.” They continued to mobilize around other women’s reproductive issues, including access to contraception, sex education, rape prevention, and legal protections from gender-based violence. But with few exceptions, they no longer discussed the issue of abortion publicly. This decision, reported to me by activists from three separate feminist organizations, is also evidenced in the newspaper review. Whereas articles reporting on feminist abortion rights activism were relatively regular up until 1999, they became nearly nonexistent between 1999 and 2007. Feminists offer two reasons for reducing public support of abortion rights. First, they noted that it was important to maintain the FMLN as allies in the legislative assembly if they were to achieve any of their multifaceted goals for women’s rights. Second, feminists feared that speaking out in favor of abortion could have powerful, negative ramifications for their nascent post-war organizations. Anti-abortion activists had proven themselves able to mobilize significant financial and political j. viterna and j. s. g. bautista / abortion and human rights, 81-93 86 J U N E 2 0 1 7 V O L U M E 1 9 N U M B E R 1 Health and Human Rights Journal resources to counter anyone who spoke in favor of abortion rights. Moreover, because the new criminal code outlawed facilitating abortion, feminists worried that any abortion rights mobilization could result in potential jail time for activists. Anti-abortion discourse finds a new target After their legislative victories in 1997 and 1999, anti-abortion discourse in El Salvador appears to have turned its attention toward a new target: mothers who would “murder” their babies. A 2001 article in El Diario de Hoy, titled “Crimes without