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El Salvador and its Restrictive Abortion Laws

Currently, El Salvador is one of the Latin American countries with the most strict abortion laws. Abortion is not permitted under any circumstances. However, before 1998 abortion was permitted under particular instances like rape, the mother’s life under threat, and severe malformation in the fetus. Unfortunately, representatives of the Catholic Church criticized the law and stated that exceptions to abortion would only lead to its legalization. As a result, the Catholic Church placed great pressure on deputies to change the law; ultimately, they were successful, and now abortion is entirely illegal.

The 17

Many feminist organizations in El Salvador are fighting to free the 17 women unjustly imprisoned, some of which are facing up to 40 years in prison due to obstetric complications. These are the 17:

1.  Mirian: She was 25 years old when the events occurred in 2001. In school, she had learning difficulties and was illiterate. She lived in a remote rural area of Morazan. Due to her limited resources, she could not afford a lawyer and had a public defender who did not defend her case correctly. She was sentenced to 30 years in prison. 
2. Maritza: Originally from a rural area in La Unión, she was 30 years old when the events occurred; she was a housewife and mother of one child. When she was 38 weeks pregnant, she lost the child and was prosecuted for aggravated homicide and sentenced to 30 years in prison. Maritza has been imprisoned since 2008.
3. Marina: She is originally from a rural community of Cabañas. She worked as a nanny. She is the mother of one child. She had a trial for aggravated murder after losing her second child. She was sentenced to 30 years in prison, being in jail since 2007. 
4. Salvadora: She was 22 years old at the time of the events, worked as a domestic employee, and already had two children. According to what she informed in her case, her pregnancy resulted from a rape. She has been imprisoned since August 2008.
5. Ena: She was 27 years old when the events occurred, had studied up to 4th grade, and was a domestic employee and mother of 2 children. She was sentenced to 15 years for attempted or imperfect homicide.
6. Carmen: In October 1999, she had an out-of-hospital delivery in the house where she worked as a domestic employee. Her employers took her to the San Bartolo Hospital, where she was reported. Subsequently, the dead body of the newborn was found, and it was determined that the baby died of asphyxia. She has been imprisoned since October 1999. 
7. Teodora: Resident of San Salvador, 24 years old at the time of the incident, she studied up to 9th grade, has one child, and worked as a saleswoman. She had an early delivery with no data or evidence of the gestation period. The newborn died, and according to the Forensic Medicine report, there is confusion because it states that it was due to perinatal hypoxia. There is no clarity on the newborn’s death and if Teodora had any responsibility in this event. However, she was sentenced to 30 years of imprisonment based on evidence and speculation alone.
8. Guadalupe: Guadalupe was 18 years old when the events for which she was prosecuted occurred. She lived in a working-class municipality in the Metropolitan Area of San Salvador and had only studied up to 4th grade. She was single and was a domestic employee. During the trial, no direct evidence was presented that clearly and precisely established that Guadalupe had performed any action that led to the death of the newborn, to whom an autopsy was performed that conclusively established the cause of death was undetermined. She was sentenced to 30 years in prison and has been imprisoned since 2007. 
9. Marina: Mariana was 22 years old at the time of the incident. She lived on a farm in Ahuachapán. She had only reached the 2nd grade in school and earned her living as a seamstress. The public defender that she had did not guarantee her an adequate defense, and she was sentenced to 25 years in prison. 
10. Mirna: Mirna, who lived in a canton in the San Salvador Metropolitan Area, was married and had a son. In May 2003, when she was 36 weeks pregnant, she felt like going to the restroom, and there she had a precipitous delivery. She was accused of causing the precipitous delivery, and based on assumptions and without any direct evidence, she was sentenced to 12 years and six months in prison for attempted homicide. Mirna has been in jail since May 2003.
11. Cinthya: Cinthya was 18 years old when the events occurred in 2008. According to her, she was eight months pregnant, and at 11:30 at night, she felt pain. She was alone in the house and went out to the yard where she had a precipitous delivery and had to attend herself. At the trial, she was assisted by a public defender. Still, she lacked adequate legal assistance. Without any direct evidence, she was sentenced to 30 years in prison. She has been in prison since May 2008. 
12. Veronica: She was 19 years old at the time of the incident. She was single and illiterate. She worked as a domestic employee. She was 36 or 38 weeks pregnant due to a rape and had an obstetric problem that caused her to expel the baby she was carrying. Her employers denounced her and took her to the Chalchuapa Hospital. She had a public defender who did not properly defend her. She was sentenced to 30 years of imprisonment.
13. Alba: Alba was 21 years old at the time of the incident in 2009. She had not been able to attend school and was illiterate. She had two children and was in charge of a sick sister. Her mother had just died. She never hid her pregnancy and had planned with her mother how to support the two children she already had and the one coming. Unfortunately, the baby died. Alba was accused of being the cause of the baby’s death; however, there is no evidence that she performed any act that could have caused the baby’s death. She was sentenced to 30 years in prison.
14. Johana: She has two young daughters. In 2008, while she was 28 weeks pregnant, she fell and felt like going to the restroom, where she gave birth prematurely and precipitously, expelling the baby she was carrying, who suffered bruises and contusions when she fell. She was accused of attempted homicide. She was sentenced to 15 years in prison for attempted homicide. 
15. Evelyn: Evelyn was 22 years old at the time of the incident. She had reached the 6th grade and worked as a farm laborer. Her family had a history of psychiatric disorders. She was living in a difficult situation of mistreatment, receiving blows and insults from her life partner, who was not the father of her first child and denied paternity of the 38-week pregnancy that Evelyn was carrying, telling her to abort it. She had a precipitous out-of-hospital delivery due to the situation she was living in. She was sentenced to 30 years of imprisonment. 
16. Teresa: She was a maquila worker and had an 8-year-old son who suffered from bronchial asthma. At the end of 2011, she was 29 years old, and although she did not know she was pregnant, she had a precipitous delivery in the restroom and died in the womb in November. She was sentenced to 40 years in prison. She has been in jail since November 2011. 
17. Maria: Maria lived in a community in San Salvador. She was 23 years old at the time of the incident. She was the mother of one child and worked as a domestic employee. In May 2010, she had a precipitous delivery outside the hospital in the house’s bathroom where she worked. She lost a lot of blood, so the medical staff who came to attend her had to administer intravenous fluids and diagnose the baby’s death. She was subsequently transferred to San Bartolo Hospital, where she was reported. Two psychiatric reports were made expressing the possibility of postpartum depression or a psychotic break. However, the judges did not consider them, and she was sentenced to 30 years in prison. 

The Issue of Class

The lack of abortion rights is an issue that affects all women in Latin America on different levels. However, a crucial system to acknowledge is class. A clear trend in the 17 Salvadoran women who have been incarcerated is that they belong to the lower social classes. Many are illiterate, belong to rural areas, and cannot afford proper legal defense. Although these 17 women are Salvadoran, in the bigger context of Latin America, many women who seek abortion have to deal with the issue of class. The Latin American class structure consists of the following levels: a dominant class of 5% to 13%, the petty bourgeoisie of 7% to 11%, the formal proletariat of 35% to 40%, and the informal sector of 40% to 50% of the population” (Hoffman and Centerno, 2003, 372). Latin America is part of a classist system where only a few people have access to resources, and the vast majority lack resources. Adding into this equation the aspect of gender, women carry a double burden. “Women have much higher illiteracy rates than men, particularly in rural areas, and the gender gap is significantly worse for rural, indigenous, and non-Spanish speaking women” (Hoffman and Centerno, 2003, 375). Women in Latin America are born into different economic circumstances. Those born in marginalized poor communities have less access to reproductive health, eventually leading to spontaneous abortions. Due to the restrictive nature of abortion in Latin countries, these women have a higher risk of being incarcerated. 

Another important group of women to mention is Indigenous women. This group of women is also highly marginalized. Many studies have shown that Indigenous origin is a significant risk factor for unsafe abortion and unwanted pregnancy. In Mexico, Indigenous women are five times more likely to abort unsafely than non-Indigenous women (Wurtz, 2012). In the case of Indigenous women, their ethnic identity also plays a role in the unbalanced access they have to abortion rights. These women may live in remote areas where they cannot access resources, and even if they do, a language barrier could also play a role. Unfortunately, analysis and research on abortion rights usually marginalize the experiences of Indigenous women, and their experiences become secondary or unimportant. It is important to remember that women are not a category of analysis, and issues like the lack of abortion rights will impact women differently. 

Although prison is one of the worst scenarios that women who perform voluntary or involuntary abortions can face, death is also a reality among poor Latin women. This was, unfortunately, the case for Manuela. A Salvadoran woman named Manuela experienced a spontaneous abortion. She went to the hospital to help with the uncontrolled physical pain she was experiencing. Unfortunately, the doctors accused Manuela of causing the abortion, so they called the police, stating that she had committed aggravated homicide. After the incident, she was sent to prison to serve thirty years. In 2010 Manuela died from lymphatic cancer, handcuffed to a hospital bed in jail. Manuela was from a rural area, illiterate, and lacked resources (Manuela v. El Salvador, Inter-American Court of Human Rights). Manuela faced multiple threats, and class played a primary role in her death. Class is a silent killer and oppressor because it pushes women to a corner they cannot space. The lack of resources, education, opportunities, knowledge, etc., places women from the low social classes in Latin America in an extremely disadvantaged situation compared to those who belong to higher socio-economic classes. For instance, there are countries where abortion is legal, so women could travel to have a safe and legal abortion. However, not all women will have access to these reproductive privileges due to class issues. Abortion rights, as a global issue, affect women differently. Therefore, it is essential to take an intersectional approach in our analysis of abortion to understand the multiple threats some women face based on how different power systems play a role in their lives.

The Prison Industrial System

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Women’s bodies in El Salvador are under extreme scrutiny. One of the most significant issues that this scrutiny brings is the criminalization of abortion which further perpetuates the Prison Industrial System. For insurance, the main reason why abortion became completely illegal in El Salvador was the church’s involvement. In 1998, abortion became illegal when representatives of the Catholic Church criticized the Salvadoran abortion laws that allowed abortions under exceptional circumstances (rape, mother’s life under threat, and severe malformation in the fetus), stating that exceptions to abortion would only lead to its legalization. As a result, the Catholic Church placed significant pressure on deputies to change the law; ultimately, they were successful. Religion is considered to be a personal choice but it had a deep impact on women’s reproductive rights (Noticias de El Salvador, El Aborto en el Código Penal, 2018). We can see how one may not consider El Salvador a secular state.

The surveillance of women’s bodies has its roots in religion, but the issue is more complex and directly linked with the Prison Industrial Complex. The idea that the state needs to regulate people’s behaviors and that the only solution to change “deviant” behaviors is through incarceration has detrimental effects on Salvadoran women. A study conducted by the Center of Reproductive Rights on the impact of the absolute criminalization of abortion in El Salvador identified 129 women who were prosecuted for abortion or aggravated homicide between 2000 and 2011. Of these, 49 were convicted: 23 for abortion and 26 for homicide to varying degrees. Quantitative research shows that the women most affected by the absolute criminalization of abortion are young women and women of low socioeconomic status. The Prison Industrial System affects women disproportionately because those of higher socioeconomic status will be less likely to end up in prison due to abortion. The main issue with the criminalization of abortion in El Salvador is that it does not take a holistic approach. It only focuses on punishing women through prison sentences, but it does not account for the realities that women experience every day. For example, there could be a lack of sexual education and contraceptive methods (especially in countries where religious values are prominent), leaving women at a greater risk of pregnancy. Unfortunately, the state does not focus on the circumstances that lead to pregnancies or their spontaneous/conducted termination. The focus on criminalization does not allow for a restorative justice framework. This framework could allow conversations on building separate from the state and women’s bodies. 

It is important to bring to light the issues that the criminalization of abortion brings to advocate against it. In El Salvador, the situation seems unfavorable as the current president, Nayib Bukele, back in September 2021, through a Facebook statement, discarded any possibility of constitutional changes regarding abortion laws in El Salvador. However, we must remember that the president only has power over any branch of government, so advocacy efforts can continue in different forms. Important insight activists need to identify the right point in the legal process to apply pressure for reform, which varies in different countries (Kane, 2008, 370). To apply pressure to different branches of government, committees, interest groups, etc. Activists need to perform a deep analysis of how the Prison Industrial System affects the country as it only focuses on retributive justice. 
Las 17 Nunca Mas recognizes the importance of advocating against the issue that the criminalization of abortion brings. Therefore, we recognize the work from EQUIS Justicia para las Mujeres as imperative. The work to transform institutions, so women have equal access to justice is imperative. Furthermore, making a clear separation between the state and women’s reproductive rights is essential to changing institutions that allow the incarceration of women based on the state’s control over women’s bodies through the Prison Industrial System.