Fifteen years ago, El Salvador criminalized any and all abortions. Now, after years of legally dubious arrests, draconian prison sentences and a controversial case involving a fetus with no brain, critics of the law call El Salvador a cautionary tale that raises the question: Is this really what a blanket ban on abortion should look like?
“Whether you’re pro-life or pro-choice, this is an issue of due process and human rights,” says Caroline Bettinger-Lopez, a University of Miami law school professor who follows El Salvador’s judiciary. She notes, for example, that while the law’s maximum prison sentence is supposed to be eight years, prosecutors often elevate the charges to aggravated murder, and judges in turn have meted out terms as long as 40 years.
Given the usually poor, uneducated and frightened state of the women involved, she argues, that constitutes abuse.
Mauricio Carballo, a spokesman for El Salvador’s federal prosecutor, denies the government has misused the abortion law. Given the innocence of the unborn, he says, the law dictates that abortion be addressed “with the gravity of homicide” and that certain cases—especially those involving late-term abortions—merit punishment.
The United Nations is calling on El Salvador to revise, if not repeal the law. This fall the London-based, pro-choice human rights group Amnesty International called the situation “institutionalized violence against women.” And Las Diez y Siete—the 17 women currently behind bars for abortion, some for sentences of 30 years or more—have become a cause célèbre among abortion rights supporters.
El Salvador has become part of the discussion about abortion in Miami. Salvadoran doctors and lawyers have recently acknowledged that women who can afford it are increasingly traveling to Florida to have legal abortions.
El Salvador is a small Central American republic scarred by civil war and drug-gang violence. But it is also heavily Catholic and increasingly evangelical. That pro-life culture made it easier in 1999 to codify church teaching into a national law that prohibits abortion under any circumstance.
The nation’s leading prelate at that time, Archbishop Fernando Sáenz Lacalle of San Salvador, said abortion-ban legislation like El Salvador’s should be considered “a societal norm.”
“If our agenda is humanitarian,” said Sáenz, “if we oppose drug-trafficking and prostitution and racial discrimination, then we must also oppose impunity for this crime.”
But the law’s detractors say it has all too often degenerated into a societal witch hunt. They point to cases like that of Cristina Quintanilla. She was rushed to a hospital where an anonymous staff member accused her of inducing an abortion. She was arrested and handcuffed to her bed.
Salvadoran authorities insist many women falsely claim they’ve miscarried when in fact they have had abortions. But at Quintanilla’s trial, according to court records, neither doctors nor prosecutors ever presented physical evidence or witness testimony to that effect, nor did the coroner determine a cause of death. Even so, the charge was raised to aggravated murder, and Quintanilla was sentenced to 30 years.
In 2009 an appellate court called the sentence excessive and ordered Quintanilla released. But her record kept her from being hired, and she emigrated a few months ago to Chicago.
Last year the government refused to let a pregnant woman known as “Beatriz” have a therapeutic abortion. Her baby had no brain and no chance of survival. Because Beatriz suffers serious conditions including kidney failure and lupus, doctors said carrying that anencephalic fetus endangered her own life.
San Salvador’s new archbishop, José Luis Escobar, stirred controversy by insisting the mother’s health was not threatened by the pregnancy. But after calls from the Inter-American Court on Human Rights to end the pregnancy, El Salvador’s Supreme Court permitted a C-section delivery. (The baby died hours later.)
Meanwhile, a growing number of Salvadoran medical and legal professionals, including the head of the National Women’s Hospital, are urging more flexibility in the law. The Catholic Episcopal Conference of El Salvador opposes any relaxation.
The discussion is being monitored around Latin America, which is home to five of the seven countries in the world that ban abortion outright.