Imagine suffering a miscarriage. All of us have or know someone who has suffered one; I had two. For me it was a terrible time and I still remember the day of loss and the expected due date. We all cope differently with this loss, but it is just that – a physical and/or emotional loss. Statistically 15-25% of women in childbearing years will suffer a miscarriage anywhere from 5 to 20 weeks gestation. In the United States, when we suffer a miscarriage we go to the hospital. Often times the visit results in a dilation and curettage (or D&C) to stop bleeding and possible infection. For me this was also done after the doctors removed the baby girl that was dead inside of my womb.
If this would have occurred in certain Latin American countries, especially in El Salvador, Chile, Colombia, Malta, Nicaragua, and even Mexico, the emergency room doctor would notify the authorities of my miscarriage and I would be arrested and jailed anywhere from 3-50 years for having an “abortion.” El Salvador even has a prosecutor’s office responsible for crimes against minors and women whose responsibilities are capturing, trying, and incarcerating women who have abortions and miscarriages. In this office, there are police, investigators, medical spies, and forensic vagina inspectors. Medical providers have an obligation to report abortions; this is focused more on young uneducated and impoverished women. For these women, there is no presumption of innocence; they are guilty.
Stories documenting this can be seen even today. For example, Luisa Cabal and Lillian Sepulveda tell a story of Marina who had a miscarriage in 2008 and was sentenced to 30 years in prison in El Salvador. While she was in jail, she was diagnosed with cancer and died a year later due to a lack of access to medical treatment. In July 2009, MCPR, an 18-year old woman, sought help at a hospital for a miscarriage. She was reported to the local authorities by her medical provider and arrested for abortion and aggravated homicide in October for an illegal abortion; she faced up to 30 years in prison. Human Rights defenders and Catolicas por el Derecho a Decidir (CDD) in El Salvador fought for her release, which occurred January 15, 2010. The Latin American Herald Tribune also reported that seven women, who suffered spontaneous abortions (miscarriages), convicted of homicide, and imprisoned with sentences up to 30 years in Guanajuato, were recently released.
The length of sentence and the number of women that are currently jailed vary based upon the country. Though controversy certainly exists with voluntary abortions, the measures these women go through for a clandestine abortion, which often jeopardize their life or reproductive health, I am focusing on the issue that surrounds spontaneous abortions or miscarriages. The policies for abortion certainly impact the criminalizing of miscarriage and to demonstrate the impact I will focus on the country of El Salvador, whose maternal death rates are double the rest of Latin America.
The series of events and parties involved with the draconian law of zero tolerance and criminalizing abortion has an interesting history with two main players. Prior to the reforming the penal code that emerged through peace accords in 1997, abortion was permitted in three cases: 1) when the mother’s life is in danger, 2) a “eugenic” abortion (baby has severe birth defects), or 3) “ethical” abortion (baby is the result of rape or incest) to ban abortions in all circumstances. It was Pope John Paul II 1995 appointment of Fernando Sáenz Lacalle, a conservative, outspoken, and supporter of Opus Dei, to the Archdiocese of San Salvador who vocalized, and successfully insisted, that the Church should be involved in the country’s anti-abortion movement; including the creation and implementation of law. The Catholic Church’s interpreted stance on abortion is now a constitutional amendment. According to Gloria Morán’s article, Canon Law, specifically Canon 1323, states “that abortion is not a basis for excommunication nor is it a sin when the women has health problems (therapeutic), if she is a minor, or has some other mental deficiency, etc.”
Hence the Church does not have a zero-tolerance policy; only those who have made their own interpretation would enforce such a draconian stance. Julia Regina de Cardenal, who runs Fundación Sí a la Vida (Yes to Life Foundation) in El Salvador, is one such person. She is not only at the forefront of the law change that not only made any abortion a criminal act, but was successful in creating a constitutional amendment stating that the government had a duty to protect life from the time of conception. In fact, any person performing an abortion or speaking to a woman who had an abortion is considered a criminal act. It was de Cardenal’s belief that abortion, especially when the mother’s life is in danger, is antiquated and outdated due to advancements made in medical technology. The mandate to defend life is so strong in El Salvador that women who suffers an ectopic pregnancy stays hospitalized until the fetus dies or the fallopian tube ruptures; nothing can be done prior to that.
As recent as September 2, 2011, de Cardenal defends the criminalization of any abortion from the moment of conception because women’s movements that support decriminalization are motivated by profit and take advantage of these women; it would be like decriminalizing murder. As pointed out in the article “El Salvador: Feminist organizations join together to demand decriminalization of abortion,” it is important to note that there is no medical confidentiality and anyone suspected of abortion, spontaneous or intentional, there is no investigation, no presumption of innocence, only immediate sentencing and conviction.
Unfortunately, de Cardenal is such an outspoken proponent, the chance of changing these laws seem remote. While another article can be authored to discuss the issue of the estimated four million abortions committed annually in Latin America, taking a draconian approach and criminalizing abortion to the point that a woman is jailed for a miscarriage over something she has no control over needs rethought. To imagine that I could be jailed for my body involuntarily miscarrying a baby that I later found had non-survivable birth defects is upsetting and incomprehensible. How can we help those women victimized by such a staunch and intolerable stance?