El Salvador high court upholds abortion ban as 'Beatriz' challenges law

A 22-year-old pregnant woman from the rural interior of El Salvador is lying in a hospital bed waiting to see if a recent Supreme Court ruling will be her death sentence. The reason: She is carrying a high-risk pregnancy in a country that has outlawed all forms of therapeutic abortion.

Doctors say “Beatriz” (an alias to protect her true identity) suffers from a series of medical conditions that will likely kill her if she carries her pregnancy to term. Repeated tests have shown that Beatriz’s baby isn’t expected to live beyond infancy. State doctors from El Salvador’s National Maternity Hospital asked the government for special permission to lift the abortion ban for Beatriz, arguing that the law was obstructing their patient’s right to health and life given her “strong probability of maternal death.”

After two months, the constitutional chamber of El Salvador’s Supreme Court on Wednesday shot down the motion and ordered the doctors to continue monitoring Beatriz’s health to provide her with “proper medical treatment” according to “medical science.” Abortion rights activists think the wording of the verdict is intentionally “ambiguous,” allowing doctors the wiggle room they need to perform an emergency Caesarean to save Beatriz, knowing full well the baby - which suffers a condition that has kept its brain and skull from developing – won’t survive.

It’s a risky gamble. If the abortion rights group is wrong about interpreting the high court’s reference to medical science as a tacit wink to their cause, it could mean jail time for Beatriz, the doctors, and the activists who supported the ending of her pregnancy. Though many women receive Caesarean procedures in Latin America, the intent here would be to save the life of the mother, not the baby. It could be viewed as a de facto abortion, some fear.

“In many ways, with this ruling we are right back to where we started two months ago,” says Morena Herrera, president of the Citizens’ Group for the Depenalization of Therapeutic Abortion, which has been accompanying Beatriz since the beginning.

El Salvador is one of five countries in Latin America – including Chile, the Dominican Republic, Honduras, and Nicaragua – to have a complete ban on all forms of abortion. That includes what doctors consider life-saving medical interventions known as “therapeutic abortions” to save a women’s life from a high-risk pregnancy, or one resulting from rape or incest.

Two of the three Central American governments led by political parties that evolved from left-wing guerrilla movements – El Salvador’s Farabundo Martí National Liberation Front (FMLN) and Nicaragua’s Sandinista National Liberation Front (FSLN) – are now hosts to the strictest abortion laws in the region. It’s compelling proof, abortion rights activists say, that when it comes to the reproductive rights of women, Latin America’s so-called revolutionary left is no different than the reactionary right – and sometimes worse. 

In both El Salvador and Nicaragua, the former revolutionary parties formed electoral alliances with church leaders to appease Latin America’s most enduring and influential institution and calm old fears about communism. To win support from the church, both “frentes” had to make un-revolutionary concessions by adopting a socially conservative position against abortion.  

Stuck in the middle

In El Salvador, the debate over Beatriz’s situation is just getting started, and the lobby for public opinion on both sides is strong. Religious leaders and social conservatives have teamed up to support the abortion ban and defend the right to life of the unborn. “Denying the procedure requested by Beatriz, in defense of the unborn, does not constitute a violation of constitutional rights,” El Salvador’s Episcopal Conference said in a seven-point declaration.

Meanwhile, women’s groups, medical associations, and international rights groups argue in favor of therapeutic abortion. “The Salvadoran government must act now to save Beatriz and fulfill its role as guarantor of human rights in the country. The world is watching and urging the authorities to intervene now to guarantee her right to life,” said Esther Major, of Amnesty International, which accuses the Salvadoran government of playing “Russian roulette” with Beatriz’s life. Amnesty’s campaign on behalf of Beatriz’s reproductive rights has received nearly 155,000 letters of support from around the world.

Stuck in the middle of the debate, the unwitting protagonist remains hospitalized and out of the public eye.

Doctors diagnosed Beatriz with a dangerous combination of ailments that nearly proved fatal during her first pregnancy in 2012, which was saved by an emergency cesarean two months before her baby was due. Her son is now a 1-year-old and could become orphaned if doctors aren’t allowed to intervene, abortion rights activists claim.

As Beatriz nears the end of her second trimester of pregnancy, time is ticking. While lawyers are busy studying the wording of the court’s ruling, international offers to help have come in from clinics in San Francisco, Mexico, and Spain, Herrera says. “Beatriz has her passport and a prepared letter requesting a humanitarian visa to travel to the US or Mexico.”

While grateful for the international solidarity, Beatriz most wants to be treated at home, Herrera says.

“We hope the doctors operate on Monday,” she says. “It would be best for the country, best for the women of El Salvador, and most importantly best for Beatriz to be near her family and the doctors who have been caring for her.”

'Real public debate'

Although the criminal prohibition on therapeutic abortion has been on the books in El Salvador since 1998, it took Beatriz’s story to force the issue into the realm of public debate.

“When the abortion ban became law in 1998, there was never any real public debate, there was only a ... campaign by the church and fundamentalist groups,” Herrera says. “But now people are finally talking about it in high schools, in government institutions, in universities, and in the marketplace.”

The debate has even divided the government, with the ministry of health taking a stance in favor of lifting the ban to save Beatriz and the state-run Institute of Legal Medicine (ILM) arguing it should be upheld. José Miguel Fortín, director of the ILM, claims the deterioration of Beatriz’s health is inevitable over time “independent of her pregnancy.”

“They say if her pregnancy is suspended, her health complications will be cured. But that’s a lie,” Dr. Fortín told local media.

Other state institutions are also getting involved and taking sides. El Salvador’s immigration director went personally to the hospital to give her a passport, in the event she needs to leave the country quickly for a Plan B operation.

Herrera says the more Salvadorans debate the dilemma, the more they are beginning to realize how invisible the victims of the criminal ban have been over the years. Herrera says, her group has documented 18 women who have been sentenced to 30 to 40 years in prison for having spontaneous abortions that judges later determined were “aggravated homicides.” Legally doctors can be punished as well, but none have been so far.

As the public learns about these cases, they see a common trait among the women: They’re all poor. None could afford to have their risky pregnancies dealt with discretely at a private clinic, or fly to Miami for a weekend medical treatment.

Public opinion in El Salvador appears to be in Beatriz's favor. A nationwide poll conducted last November suggested that 57 percent of the population is in favor of a therapeutic abortion to save a mother’s life. 

“I think there has been a 180-degree shift in public opinion and awareness about this issue in El Salvador. Beatriz’s case represents a watershed moment for the country,” says Marta Maria Blandon, director of Ipas Central America, an international organization working for women’s reproductive rights.

The 'before and after'

But in neighboring Nicaragua, the possibility of change is much more elusive, Ms. Blandon says. Though there have been similarly emblematic cases of women like Beatriz who have drawn international attention to the issue of reproductive rights in Nicaragua, the lack of public information and debate under the current administration has prevented those cases from moving forward with the push to reinstitute therapeutic abortion, banned since 2006.

Instead, Nicaragua’s socially conservative Sandinista government, which has close ties with religious leaders, has vowed to uphold the ban on therapeutic abortion. In 2008, more than 170 rights activists filed a constitutional challenge to the government’s ban on therapeutic abortion. Five years later, the Sandinista-controlled Supreme Court has still not ruled on the matter, 2,340 days after the legal deadline for a verdict passed.

The government’s refusal to discuss the matter has partially pushed the tinderbox issue back into the shadows as a social taboo.

Last week, the story of two 12-year-old pregnant girls who ended up at a maternity clinic in the rural municipality of Mulukukú after being repeatedly raped at home for the past four years barely made page 5 news in the national newspapers. Neither of the girls will be allowed to have a therapeutic abortion, and their case has not created a stir in Nicaragua.

Whereas the plight of Beatriz has activists around the world expectant that change could come in El Salvador, Nicaraguan society doesn’t seem to want to talk about it anymore.

“In El Salvador, the case of Beatriz will mark a before and after,” Blandon says. “But in Nicaragua, there is only a before, and then a ‘before-that,’ as the country moves backwards.”