April 9, 2006
By JACK HITT
It was a sunny midafternoon in a shiny new global-economy mall in San Salvador, the capital city of El Salvador, and a young woman I was hoping to meet appeared to be getting cold feet. She had agreed to rendezvous with a go-between not far from the Payless shoe store and then come to a nearby hotel to talk to me. She was an hour late. Alone in the hotel lobby, I was feeling nervous; I was stood up the day before by another woman in a similar situation. I had been warned that interviewing anyone who had had an abortion in El Salvador would be difficult. The problem was not simply that in this very Catholic country a shy 24-year-old unmarried woman might feel shame telling her story to an older man. There was also the criminal stigma. And this was why I had come to El Salvador: Abortion is a serious felony here for everyone involved, including the woman who has the abortion. Some young women are now serving prison sentences, a few as long as 30 years.
More than a dozen countries have liberalized their abortion laws in recent years, including South Africa, Switzerland, Cambodia and Chad. In a handful of others, including Russia and the United States (or parts of it), the movement has been toward criminalizing more and different types of abortions. In South Dakota, the governor recently signed the most restrictive abortion bill since the Supreme Court ruled in 1973, in Roe v. Wade, that state laws prohibiting abortion were unconstitutional. The South Dakota law, which its backers acknowledge is designed to test Roe v. Wade in the courts, forbids abortion, including those cases in which the pregnancy is a result of rape or incest. Only if an abortion is necessary to save the life of the mother is the procedure permitted. A similar though less restrictive bill is now making its way through the Mississippi Legislature.
In this new movement toward criminalization, El Salvador is in the vanguard. The array of exceptions that tend to exist even in countries where abortion is circumscribed — rape, incest, fetal malformation, life of the mother — don't apply in El Salvador. They were rejected in the late 1990's, in a period after the country's long civil war ended. The country's penal system was revamped and its constitution was amended. Abortion is now absolutely forbidden in every possible circumstance. No exceptions.
There are other countries in the world that, like El Salvador, completely ban abortion, including Malta, Chile and Colombia. El Salvador, however, has not only a total ban on abortion but also an active law-enforcement apparatus — the police, investigators, medical spies, forensic vagina inspectors and a special division of the prosecutor's office responsible for Crimes Against Minors and Women, a unit charged with capturing, trying and incarcerating an unusual kind of criminal. Like the woman I was waiting to meet.
With the signing of the Chapultepec Agreements in Mexico in 1992, El Salvador's civil war came to an end. As the nation turned away from its violent years, there were calls from both sides of the political divide that it was time to re-examine certain social issues. One of them was abortion. The country's abortion law, like the law in most Latin American countries at the time, was already a near-ban with only a few exceptions, specifically in cases of rape, serious fetal malformation and grave risk to the mother's life. For decades, the law was rarely discussed, and enforced quietly and somewhat subjectively. Once the issue was raised in the political arena, though, Salvadorans discovered that a brand-new kind of discourse on abortion had emerged in Latin America.
"The ban was part of a backlash," I was told by Luisa Cabal, the legal consultant for Latin America at the Center for Reproductive Rights, an abortion rights organization based in New York. The proposed bill, Cabal said, was a result of "the church's role in pushing for a conservative agenda." With the archbishop's vocal support of the ban and conservative groups fully energized, opposition soon became difficult. Any argument in favor of therapeutic abortion was met with a religious counterargument.
Julia Regina de Cardenal runs the Yes to Life Foundation in San Salvador, which provides prenatal care and job training to poor pregnant women. She was a key advocate for the passage of the ban. She argued that the existing law's exception for the life of the mother was outdated. As she explained to me, "There does not exist any case in which the life of the mother would be in danger, because technology has advanced so far." De Cardenal was particularly vehement in responding in print to her opponents. As she wrote in one Salvadoran newspaper column in 1997, "The Devil, tireless Prince of Lies, has tried and will continue to try to change our laws in order to kill our babies."
Positions on the strengthened ban essentially split along party lines, at least at first. "The majority of our leadership came out in opposition," Lorena Peña, an FMLN representative in the Assembly, told me. But the FMLN held only a minority of the seats in the 84-member Assembly, and they were unable to stop the bill. The proposal to ban all abortions passed the Assembly in 1997 and became the law of the country in April 1998.
"But that was not enough," de Cardenal later wrote in an article recounting the victory. In 1997, her foundation also proposed a constitutional amendment that would recognize the government's duty to protect life from the time of conception.
The leadership of the FMLN, afraid that the party would be trounced in the coming elections if they were on the record as opposing the amendment, freed its deputies from their obligation to follow the party's position and urged them to vote with their consciences. When the final vote was taken, the amendment passed overwhelmingly.
The legislative battle and its outcome did not escape the attention of leaders of anti-abortion groups in the United States. Rev. Thomas J. Euteneuer, the head of Human Life International, based in Virginia, is intimately familiar with the campaign in El Salvador and says that there are lessons for Americans to learn from it. For one thing, as Euteneuer sees it, the Salvadoran experience shows that all moves to expand abortion rights are pushed through by "elite" institutions of government (the U.S. Supreme Court, for example); by contrast, Euteneuer contends, when the laws are tightened, a grass-roots campaign is inevitably responsible. "El Salvador is an inspiration," he told me recently, an important victory in what he called "the counterrevolution of conscience."
Today, Article 1 of El Salvador's constitution declares that the prime directive of government is to protect life from the "very moment of conception." The penal code detailing the Crimes Against the Life of Human Beings in the First Stages of Development provides stiff penalties: the abortion provider, whether a medical doctor or a back-alley practitioner, faces 6 to 12 years in prison. The woman herself can get 2 to 8 years. Anyone who helps her can get 2 to 5 years. Additionally, judges have ruled that if the fetus was viable, a charge of aggravated homicide can be brought, and the penalty for the woman can be 30 to 50 years in prison.
"Back-alley abortion" is a term that has long been part of the abortion debate. In the United States, in the years since Roe v. Wade, it has come to seem metaphorical, perhaps even hyperbolic, but it happens to conjure precisely D.C.'s experience. And it's easy in El Salvador to find plenty of evidence that D.C.'s story is neither isolated nor the worst case. A report by the Center for Reproductive Rights offers this grim list of tools used in clandestine abortions: "clothes hangers, iron bars, high doses of contraceptives, fertilizers, gastritis remedies, soapy water and caustic agents (such as car battery acid)." That list is meant to disgust a reader in the same way that imagery of mangled fetuses is meant to when employed by those who oppose abortion. But the criminalization of abortion in the modern age, in El Salvador at least, is not so simple as a grim return to the back alley. For the most part, the new law has not resulted in a spike in horror stories of painful and botched clandestine procedures.
To begin with, when a woman might face jail time for an abortion, she's less likely to discuss her pregnancy at all. According to a study on attempted suicide and teen pregnancy published last year by academics at the University of El Salvador, some girls who poison their wombs with agricultural pesticide (its efficacy being a Salvadoran urban legend) would rather report the cause of their resulting hospital visit as "attempted suicide," which is not as felonious a crime nor as socially unbearable as abortion. "They don't want to be interviewed about abortion," Irma Elizabeth Asencio, one of the study's authors, explained to me. "They know they have committed a crime."
Abortion as it exists in El Salvador today tends to operate on three levels. The well-off retain the "right to choose" that comes of simply having money. They can fly to Miami for an abortion, or visit the private office of a discreet and well-compensated doctor. Among the very poor, you can still find the back-alley world described by D.C. and the others who turn up in hospitals with damaged or lacerated wombs. Then there are the women in the middle; they often rely on home-brewed cures that are shared on the Internet or on a new underground railroad that has formed to aid them.
"When we get a call from a hospital reporting an abortion," said Flor Evelyn Tópez, "the first thing we do is make sure the girl gets into custody. So if there is not a police officer there, we call the police and begin to collect evidence." Tópez is a prosecutor in the district of Apopa in San Salvador, a part of town noted for its poverty, crime and gang violence. She is a compact and tense woman. She wears a beautiful silver cross around her neck with smaller matching crosses for earrings. Her hair is pulled into a tight narrow bun across her head, held in place by small plastic flowers. Her gaze beams from steady eyes, each haloed in cobalt mascara.
A policy that criminalizes all abortions has a flip side. It appears to mandate that the full force of the medical team must tend toward saving the fetus under any circumstances. This notion can lead to some dangerous practices. Consider an ectopic pregnancy, a condition that occurs when a microscopic fertilized egg moves down the fallopian tube — which is no bigger around than a pencil — and gets stuck there (or sometimes in the abdomen). Unattended, the stuck fetus grows until the organ containing it ruptures. A simple operation can remove the fetus before the organ bursts. After a rupture, though, the situation can turn into a medical emergency.
According to Sara Valdés, the director of the Hospital de Maternidad, women coming to her hospital with ectopic pregnancies cannot be operated on until fetal death or a rupture of the fallopian tube. "That is our policy," Valdés told me. She was plainly in torment about the subject. "That is the law," she said. "The D.A.'s office told us that this was the law." Valdés estimated that her hospital treated more than a hundred ectopic pregnancies each year. She described the hospital's practice. "Once we determine that they have an ectopic pregnancy, we make sure they stay in the hospital," she said. The women are sent to the dispensary, where they receive a daily ultrasound to check the fetus. "If it's dead, we can operate," she said. "Before that, we can't." If there is a persistent fetal heartbeat, then they have to wait for the fallopian tube to rupture. If they are able to persuade the patient to stay, though, doctors can operate the minute any signs of early rupturing are detected. Even a few drops of blood seeping from a fallopian tube will "irritate the abdominal wall and cause pain," Valdés explained. By operating at the earliest signs of a potential rupture, she said, her doctors are able to minimize the risk to the woman.
In prosecutors' offices in El Salvador, as in prosecutors' offices anywhere, longer sentences are considered better sentences. "The more years one can send someone away for," I was told by Margarita Sanabria, a magistrate who has handled several abortion cases, "the better it is for the prosecutors." She cited this motivation to account for what she has observed recently: more later-term abortions being reclassified as "aggravated homicide." If an aborted fetus is found to have been viable, the higher charge can be filed. The penalty for abortion can be as low as two years in prison. Aggravated homicide has a minimum sentence of 30 years and a maximum of 50 years.
Jack Hitt is a contributing writer. He has written for the magazine on a number of topics, including the availability of abortion in the United States.