Seeking Justice for 17 Salvadoran Women Imprisoned for Miscarriage and Stillbirth
A Salvadoran feminist organization has launched an international campaign to pressure the government to pardon and free 17 women who suffered complications of pregnancy leading to miscarriage and stillbirth, and who have been imprisoned under the country's total abortion ban.
Teresa didn’t realize she was pregnant in November 2011 until she gave birth in a latrine, and the baby died. She was 29 years old, lived in a working-class neighborhood of metropolitan San Salvador in El Salvador, worked in a factory, and cared for her young son, who suffers from severe bronchial asthma. She hemorrhaged heavily, and her family called the Salvadoran Red Cross, which transported her to a public hospital. Medical personnel reported her to police, accusing her of provoking an abortion. She was taken directly from the hospital to jail, where she has been ever since. Prosecutors upgraded the abortion charges to aggravated homicide, and she is now serving a 40-year sentence.
The Salvadoran feminist organization La Agrupación Ciudadana por la Despenalización del Aborto (the Citizen Group for the Decriminalization of Abortion) has launched a campaign petitioning the Salvadoran government to grant pardons and free 17 women imprisoned under such circumstances, including Teresa. These 17 women have no other legal recourse, having exhausted all other alternatives under Salvadoran law. (Rewire and the International Campaign for Women’s Right to Safe Abortion have joined with the Citizen Group in the international campaign. A petition can be found here in English and Spanish.)
At Teresa’s trial, prosecutors failed to present evidence or testimony of any action on her part that led to the death. In addition, numerous inconsistencies surfaced in the case against her. The physician who treated her stated, “It cannot be determined if this was a normal-term birth or an abortion.” The autopsy stated that the cause of death was perinatal asphyxiation. The judge interpreted this diagnosis to mean a death provoked by aggression, but according to the Citizen Group, the judge’s interpretation does not meet medical standards. Perinatal asphyxiation can have diverse natural causes in the moment before or after birth.
The court and Teresa’s public defender overlooked the fact that the court accepted testimony that Teresa was pregnant in January 2011, but that the obstetrical complications occurred in November 2011. It appears that the judge considers the pregnancy to have lasted 11 months.
Even with these inconsistencies, the lack of evidence of wrongdoing, and the lack of a presumption of innocence, she was convicted and sentenced to 40 years in prison. Her chronically ill son is under the care of his elderly paternal grandmother.
Abortion has been illegal under all circumstances in El Salvador since 1997, when lawmakers reformed the nation’s law to remove the three previously existing exceptions that applied in cases of rape or incest, if the mother’s life is in danger, or if the fetus is not viable outside the uterus. They established a penalty of two to eight years in prison. Additionally, in 1998 the El Salvador legislature approved a constitutional amendment declaring that life begins at conception. That combination allows prosecutors to convert many abortion charges to aggravated homicide, which carries a sentence of 30-to-50 years.
In reality, Salvadoran courts imprison poor women for miscarriages, stillbirths, and other obstetrical complications. Prosecutors and judges utilize the law to cast a wide net and send women to prison without respect for their rights to due process, the presumption of innocence, a standard of reasonable doubt, or an effective legal defense. Judges hand down convictions and lengthy sentences even when prosecutors fail to present evidence of any wrongdoing on the part of the accused woman.
The pathway to prison commonly begins when a woman experiences a miscarriage or other complication away from a medical facility. She seeks help at a public health clinic or hospital, usually arriving hemorrhaging and unconscious. Medical personnel call police and accuse the woman of abortion. Police arrest the woman and transport her from the hospital to jail. Frequently women are interrogated by police at the hospital before fully recovering from the effects of anesthesia and before gaining any understanding of what has happened to them.
As Morena Herrera, president of the Citizen Group, emphasized in an on-the-ground interview in March, “This only occurs at public hospitals. No private hospital, not one, appears in the documents showing where cases originate. Women with the economic means can find appropriate medical care at private medical facilities within the country, or they can travel outside the country.”
The Citizen Group published a research report called Del Hospital a la Cárcel (From the Hospital to the Jail) in 2013, which included the socio-economic profile of women charged with abortion-related crimes. Sixty-eight percent are between 18 and 25 years old. But what is particularly alarming is that 25 percent are between 18 and 20 years old. Twenty-seven percent are illiterate or have no more than a third-grade education. Fifty-two percent have no income, while the rest have minimum-wage jobs. The report also found that 74 percent of the women confront their pregnancies alone, without any involvement from the male involved in the pregnancy. The report notes that age, poverty, and low educational levels appear to be common factors among women who were charged with a crime.
Another of the 17 imprisoned women, Veronica, has served 11 years of a 30-year sentence. At age 19, she was pregnant as a result of a rape, single, and without any formal education. She was employed as a domestic worker in her rural hamlet when she suffered an obstetrical complication and lost her fetus. Her employers took her to a public hospital and reported her to police, who accused her of the crime of abortion. Prosecutors later upgraded the charges to aggravated homicide. The court found her guilty and sentenced her to 30 years in prison.
At her trial, the prosecution failed to present witnesses or evidence to explain how the events occurred. The court itself recognized in its sentencing statement that there was no direct evidence on which to convict Veronica, stating, “With respect to who is responsible for perpetrating the crime, the court judges that there is no direct evidence, but there do exist demonstrated facts that when put together can lead to a conclusion.”
The Citizen Group asserts that the court used speculation based on prejudices, such as those expressed in another section of the sentencing statement: “The motives that the accused had are unknown, although it can be deduced that the motivation was to avoid social reproach.”
The various medical and forensic reports disagreed about the gestational age of Veronica’s fetus, with estimates ranging from 16 to 36 weeks. Veronica’s public defender did not defend her against these inconsistencies and biases and did not assert her right to a presumption of innocence. Nevertheless, unless Veronica receives a pardon, she will spend 19 more years in prison.
On April 1, the Citizen Group filed documents with the Salvadoran National Legislature to petition the government to grant pardons to these 17 women who are serving sentences of 12 to 40 years. Under the Special Law for Appeals of Grace, each pardon must be reviewed and approved by each of the three branches of government. The process begins in the legislature, and then goes to the judicial branch. Finally, the president must ratify the decisions. By law, the three branches of government should complete the process within three months, by July 1, but responses to previous pardons, even when favorable, have taken much longer.
In the petitions, the Citizen Group asserts that the errors and violations of human rights committed by the Salvadoran state can be repaired by granting pardons. Herrera pointed out that all the women “had an inadequate defense” and that the convictions “are not based on direct evidence, but rather on the interpretations of judges and in many cases exculpatory evidence was not even taken into account.” Therefore, “[t]his is violence on the part of the Salvadoran State against the women.”
In a recent radio interview, Herrera explained that the Citizen Group had reviewed the court records for every one of the 17 women: “No court shows where direct proof of wrongdoing on the part of the woman was presented.”
The Citizen Group’s campaign seeks to gain support from the Salvadoran and international public by educating them about the lives of the imprisoned women and the impact of the application of the laws. As the group launches its national campaign, Una Flor por las 17, it has produced radio spots designed to raise awareness about the structural injustices involved. One spot explains, “Because of the structural conditions in which they live, poor women are condemned from the beginning to birth complications.”
Another spot addresses a common societal belief that has been expressed in some of the women’s trials that “real” mothers do everything possible to protect and save their children: “When we know the women and the economic, social, and emotional circumstances under which they give birth, we understand that they are not unnatural mothers or assassins. They are not better or worse than other Salvadoran women. We are all ‘the 17.’”