BOGOTÁ — In December 2023, Lilian was the last Salvadoran woman to regain her freedom after spending seven years in prison for an obstetric emergency. In 2015, the courts found her guilty of “murdering” her unborn baby by planning an abortion, when in fact, a tear in her uterus had caused the death. Medics had to give her three blood transfusions to stabilize her.
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El Salvador is one of Latin America’s most restrictive states in terms of women’s sexual and reproductive rights. Abortion is banned as the state considers persons to exist from the moment of conception, contrary to the advice of international human rights groups. Under this strict ban, women who have had pregnancy complications, miscarriages or prenatal deaths to be charged with premeditating abortion.
Certain cases yielded 30-year prison sentences, including for the Las 17 y más (17 and more) group. But since 2014, 73 women have regained their freedom thanks to strategic litigation on their behalf, which duly annulled their sentences. Lilian was the last of them.
The 17 came to be the faces of El Salvador’s blanket criminalization of abortion. Sara García, a psychologist and member of the Citizen Group for the Decriminialization of Abortion, says Salvadoran women are subject to a veritable social persecution wherein they are effectively “presumed to be guilty” before the facts are established. The penalty for abortion in El Salvador is 14 years in jail, with medical staff also being liable to prosecution. But as abortions are difficult to establish, suspects are prosecuted for murder, the maximum sentence of which is 50 years.
Injustice behind bars
According to the country’s Women’s Equality Center, at least 180 women have been prosecuted and jailed in the past 20 years in cases relating to obstetric or childbirth emergencies. Today, 11 women are facing charges, but thanks to the work of human rights and feminist organizations, they can defend themselves outside of prison.
The Inter-American Court of Human Rights has also helped with its 2021 Manuela v El Salvador verdict. Manuela, who had been found guilty of murder following a miscarriage, died two years into her prison sentence from cancer possibly caused by her miscarriage. The court found El Salvador guilty of grave rights abuses and called on it to end the persecution of women through draconian laws.
The system sees these women as guilty and wanting to hide or end their pregnancy.
In its From the hospital to prison report, the Citizen Group explains how the 17 learned about the criminal charges while in hospital, recovering from anaesthesia and with little understanding of what was to come. Marcela Martino, a Central America and Mexico director for the regional rights group CEJIL (Centro por la justicia y el derecho internacional), said the persecuted women are usually of low-income and poorly educated backgrounds and are poorly defended in court.
Martino told El Espectador that the system sees these women as guilty and wanting to hide or end their pregnancy. This “stigmatizing and violent” vision is not “without its social component,” she said, meaning Salvadoran society was already inclined to believe this storyline.
Despite the Inter-American court’s ruling, the clampdown on abortions is unlikely to change under President Nayib Bukele‘s conservative government. In this context, there is a resurgence of feminist activism and human rights defense work, Citizen Group’s García told El Espectador. She said the Group’s work was in part compensating for the state’s reluctance to implement that verdict, which includes paying reparations to the freed women.
Hope for change
The Inter-American court has heard its first case on El Salvador’s total abortion ban (Beatriz v. El Salvador), and is expected to issue a verdict in late 2024 or early 2025. Activists hope the Court will rule in her favor; strengthening the Manuela verdict. These cases indicate that progress is being made in El Salvador on the right to access sexual and reproductive health care.
The fact that no woman is currently in jail is the fruit of “years of struggle,” said an abortion assistant who asked not to be named. No woman should be jailed, she told El Espectador, for undergoing “a situation of emergency during pregnancy, needing an abortion to save her life or even for wanting to decide over her own body.”
In spite of the 11 pending cases and the country’s reluctance to address sexual and reproductive rights, a growing number of Salvadorans, especially younger women, are joining calls to decriminalize abortion.
A public health issue
UN agencies such as the WHO consider access to safe and legal abortion a human right, and say that restrictions threaten physical wellbeing of pregnant women. In countries where abortion is criminalized, only one in four abortions are done safely, compared to 90% in countries without legal restrictions. Likewise, countries that have banned abortion are also those with the worst rates of maternal mortality, sexual abuse and forced and underage marriages.
The Guttmacher Institute estimates there are 73 million abortions a year worldwide, 40% of which are carried out in unsatisfactory conditions even in places where they are legal. Broadly, the emphasis of health agencies is for states to view abortion as a public health issue.
