An End to El Salvador’s Years-Long Abortion Ban Could Be on the Horizon

Oct 31, 2016, 4:26pm Kathy Bougher -

"This is not the 'Holy Inquisition!' This is the Legislative Assembly of El Salvador in the 21st century, with sufficient knowledge to make decisions," said Lorena Peña, the current president of the Legislative Assembly, when introducing a bill to decriminalize abortion in some circumstances.

For the last 19 years, abortion has been illegal in all circumstances in El Salvador, leading to the imprisonment of dozens of women after obstetric emergencies. Now, a bill is up for debate in the Salvadoran legislature that would decriminalize abortion care in specific conditions—and while opponents want to push off the issue, local and international activists say such legislation’s time has come.

Lorena Peña, the current president of the Legislative Assembly, introduced the bill in the legislature on October 11. Peña is also a longtime activist in the leftist FMLN party and co-founder of the feminist organization Las Melidas.

Peña’s proposal would add a section to the criminal code, stating that abortions under four circumstances would not be punishable: for the purpose of saving the life of the woman and preserving her health; when the pregnancy is the result of rape or human trafficking; when there exists a fetal malformation that makes it non-viable outside the uterus; and in cases of statutory rape, with parental and patient consent.

“This is not obligating anyone, only giving an option to choose. It cannot be that in cases of rape, incest, statutory rape, that we obligate girls and their parents to continue with a pregnancy that is clearly the result of a crime!” Peña said while introducing the bill.

“Here in this institution right now, we have an employee who has been diagnosed with a fetus that is dead, and the doctors don’t want to remove it for fear of being accused of abortion,” Peña continued, referring to an anonymous employee in the legislature offices.

The bill had its first hearing in the Committee on Legislation and Constitutional Points on Monday, October 17. The committee is planning more hearings to discuss the legislation in the coming weeks.

El Salvador’s total ban on abortion has gotten increased attention in recent years, in part because of the work of local feminist organizations. For example, La Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) has fought for pardons for “Las 17,” women who went to public hospitals after suffering miscarriages or other obstetric emergencies and who were subsequently convicted of abortion or aggravated homicide. Some of “Las 17“—now sometimes called “The 17 and More” because of the continuing problem—were sentenced to up to 40 years in prison. The Agrupación also supported “Beatriz,” a woman who in 2013 requested an abortion on her doctor’s recommendation because of her grave health problems during her pregnancy and because her fetus was fatally anencephalic. Her case went to national and international courts before doctors finally performed a procedure to deliver the baby, who lived for five hours.

“The Agrupación worked systematically over the years to make visible the consequences of the legislation prohibiting abortion, and based on the evidence we have gathered, we support [Peña’s] proposal,” explained Sara Garcia, coordinator of the Agrupación, in an interview with Rewire.

In a press release supporting the bill, the Alliance for Women’s Health and Lives, an organization of 30 Salvadoran feminist and social justice groups, pointed to a United Nations Population Fund report noting 30 percent of pregnancies in the country in 2015 occurred in girls and adolescents between the ages of 10 and 19 years old.

“This is particularly dramatic for the 1,444 girls between 10 and 14 years who were obligated to become mothers without having the necessary physical, psychological and emotional development,” the press release continued. “These pregnancies are the result of incest or abuse; all of them constitute crimes according to our legislation.”

The bill’s supporters have noted that Salvadoran legislation concerning abortion must be consistent with other legislation in the country protecting the rights of women and girls. In 2011, the legislature passed two laws concerning gender equality and the right to a life free of violence. Peña and her supporters argue that criminalizing abortion is not consistent with the letter nor the spirit of the two laws.

As Amnesty International detailed in its 2014 report, On the Brink of Death, the absolute ban also places El Salvador in non-compliance with several international agreements onto which it has signed.

In a public statement following the introduction of the bill, Peña explained the legal and medical urgency for the legislation. “In various cases the Constitutional Court [of El Salvador] has declared that it falls within the realm of the Legislature to regulate conflicts that derive on one side from the mother and on the other from the pregnancy, that can have grave consequences,” she wrote.

“We know that women with cancer are not given chemotherapies or dialysis if they are pregnant, nor if they have a pregnancy outside the uterus, in which they and the baby can die. [Doctors] wait to see who dies or they simply leave them unattended. Directives from the Gynecological and Obstetrical Association of El Salvador today affirmed that this is an ethical conflict for them to not be able to save the lives of many women because our legislation does not permit it,” she continued.

“This is not just a moral problem … but also a problem of public health, and it is a challenge to legislators of conscience to not evade the problem and to open the debate,” she concluded.

The bill, as its supporters have pointed out, would not decriminalize abortion in all or even most cases. Still, right-wing parties and organizations have condemned the proposal.

The conservative ARENA political party, for example, responded to the legislative initiative with a communique in which it reiterated its long-held position that “abortion is not debatable,” and “non-negotiable,”  and that it is “assassination.”

Sara Larín, president of the anti-choice group VIDA SV, claimed in an interview with the conservative Catholic news service ACI Prensa that it was “evident” the purpose of the legislation was to “distract” the population from other national problems, such as a financial crisis, with “blackmail over abortion.”

Ricardo Parker Velasquez, Committee on Legislation and Constitutional Points member and ARENA representative, stated during the October 17 hearing, “My defense will be in favor of the value of life,” although he acknowledged that the information presented on the ban’s danger to women was “real.” Parker Velasquez in July introduced legislation to increase the penalty for abortion from two to eight years in prison, to 30 to 50 years in prison, as reported by Rewirea bill still active in the legislature.

The committee had the power to send the bill to “archives” at that October 17 meeting, essentially killing it, but it did not do so. According to Garcia from the Agrupación, the ensuing debate might continue for months or even years. To become law, it will need to be returned at some point to the full plenary for a vote.

No one party controls the Legislative Assembly, so either the FMLN or ARENA will have to make pacts with legislators from other parties in order to have a majority vote in favor or against.

And there are some cracks appearing in the opposition. A significant event occurred on October 12, when ARENA legislator Johnny Wright Sol acknowledged on his Facebook page the need for discussion:

The fact that abortion is illegal, not to say that it is a problem that does not exist, there are those who have the opportunity to choose to have an abortion out of the country or just do it discreetly [within the country], and there are those who do not have those resources and must resort to clinics … where they can even lose [their lives] …. In our country, abortion is a reality, [and] it always has been.

Constituents can also play a role in shaping the debate, as Alberto Romero, coordinator of the Movement for a Secular Society and Agrupación member, pointed out in a phone interview with Rewire. “It’s not the custom in El Salvador to lobby legislators directly, but we are changing that slowly. The legislators need to hear the voices of the public in general as well as those who live in their districts who support the initiative. The ‘right-to-life’ organizations are very organized with online petitions and letters to legislators expressing their opinions. Even though we know the other side will be strong, we need to be vocal, and legislators need to know there are diverse opinions,” he said.

“What we have to make clear is that this is something that organizations have been working on for years, building alliances with organizations across the spectrum, with governmental human rights leaders, with international groups, and many others. There probably isn’t a perfect moment to introduce this, but now is when Peña decided to do it, and we support her. She runs a political risk with this type of action, but clearly she has the commitment and the willingness to use her leadership to promote rights of women.”

As Peña noted in her speech introducing the bill, El Salvador’s outdated abortion laws are out of step with the realities many Salvadoran women regularly face.

“I believe that in these cases that are clear abuses that are being committed every day in our country, that we should open our minds and our hearts a little more to have legislation that is less inquisitorial,” she said. “This is not the ‘Holy Inquisition!’ This is the Legislative Assembly of El Salvador in the 21st century, with sufficient knowledge to make decisions.”