By Michelle Oberman

Photo credit: David Salafia

In El Salvador, one of the few countries to ban abortion without exception, doctors and lawyers collaborate in order to identify and prosecute those suspected of abortion-related crimes. With its stories of selective enforcement, mistaken diagnoses, wrongful convictions and a thriving black market in abortion drugs, we witness one country’s practical experiences with criminalizing abortion. This month, for example, Amnesty International reported on a woman who has been unfairly jailed for the past ten years after suffering a stillbirth. Similar stories of criminalized abortion appear in legal scholar Michelle Oberman’s forthcoming book, Her Body, Our Laws: On the Front Lines of the Abortion War, from El Salvador to Oklahoma. Oberman gives us an up-close look in the following excerpt of what happens when a woman in El Salvador is caught in the legal tangle of abortion laws.

***

We visited Christina at her grandmother’s home in El Transito, a village two hours outside San Salvador. She began her story at the point when she was seventeen and expecting her second child. Several months into her pregnancy, she and her three-year-old son left El Transito and moved to San Salvador, living in the second bedroom of her mother and stepfather’s apartment so that Christina would be close to the public hospital when her baby came.

It was Saturday, October 23, 2004. Earlier that week, Christina and her mother had shopped for new linens and baby clothes, having decided to spend money on the baby rather than on a baby shower. As her mother prepared to leave for work, Christina mentioned that she’d had diarrhea earlier that morning. Neither she nor her mother was alarmed, though. Christina had had stomach problems regularly since her appendix burst, about a year before, and her baby wasn’t due for another month or so.

After dinner, when her mother returned from her shift at the tortilla factory, Christina mentioned that her stomach was upset. She lay down on the bed she shared with her three-year-old son. She felt sick, but it didn’t feel as if she was having contractions; she knew because she remembered how they’d felt.

Several hours later, she got out of bed and told her mother she couldn’t sleep. Her mother made her some tea with sugar.

In the middle of the night, Christina awakened with an urge to go to the bathroom. She sat up in bed and felt a sudden, tremendous pain. The apartment was small, so she managed to get to the bathroom by dragging herself, one hand on each wall. The pain was so intense that she felt she was suffocating. The last thing she remembers is struggling to push open the metal bathroom door.

She woke up in a hospital bed where a woman stood over her demanding, “Y el bebé?” (“And the baby?”). As she emerged from the fog of anesthesia, three guards stood at her bedside, asking, “What’s your name? Where do you live? How many months pregnant were you?” She kept falling asleep, and they kept shaking her awake, saying, “You have to answer us.”

Over the course of long hours of interrogation, she learned that her baby had died. After getting a call from the doctors, police had searched Christina’s mother’s apartment and found the body in the mess of blood and towels left behind when her mother dragged Christina to the neighbor’s waiting truck so they could drive her to the hospital.

Christina had experienced what doctors call “precipitous labor and delivery,” in which there is a sudden onset and rapid progression of the birth process. Doctors don’t always know why this happens, but one expert on the subject, Dr. Anne Drapkin Lyerly, a professor and obstetrician at the University of North Carolina, offered several explanations for what might have caused Christina’s miscarriage.

“My first guess,” she said, “involves infection. The fact that she had ongoing gastrointestinal problems is a common sign of infection. In pregnant women, such infections can spread to the amniotic sac, leading to precipitous delivery and/or miscarriage.”

Lyerly noted that a quick pathology investigation of the placenta would have revealed the presence or absence of infection. In Christina’s case, no such examination was performed. It’s not clear whether the government would have paid the costs for such testing, given Christina’s impoverished status and her reliance on a public defender. It’s not even clear that doctors or prosecutors bothered to preserve her placenta as forensic evidence. The issue is moot, though, as Christina’s lawyer never made the request.

Instead, after two or three days at the hospital, Christina was arrested on suspicion of abortion and was transferred, handcuffed and still bleeding, to the police station just outside the women’s prison in the city of Ilopango. After a week of interrogations and after the coroner determined that the fetus was beyond seven months’ gestation, Christina was charged with homicide.

At her preliminary hearing, the prosecutor argued that Christina must have known she was in labor because she had already had a child. Once a woman experiences labor pains, he claimed, she cannot mistake them for any other sort of pain. Christina killed her child, the state alleged, by not telling someone she was in labor.

The presiding judge told the prosecutor to respect Christina’s loss. He dismissed the case for lack of proof.

Fifteen days later, the prosecution claimed it had “new evidence,” although Christina’s defense team never learned what it was, and Christina’s case was reopened. She was assigned a new public defender, whom she didn’t meet until the day of her preliminary hearing. Once again, the state had charged her with homocidio culposo—our version of manslaughter. The crime carried a potential sentence of two to eight years. This time, the judge let the case go to trial.

At trial, her new lawyer failed to object when the judges decided to convict Christina of a far more serious crime than the one with which she had been charged: homicidio agravado, or aggravated homicide. The judges justified this heightened penalty by referencing the innocence of the victim, and by once more invoking the notion that, as an experienced mother, Christina must have known she was in labor.

Christina was convicted on the theory that, by failing to get medical help, she caused her baby’s death. Aggravated homicide (homicidio agravado) carries a much higher penalty than manslaughter (homicidio culposo), and Christina was sentenced to thirty years.

I asked Lyerly what she thought of the state’s claim that Christina must have known she was in labor.

“There’s no logic to the court’s position,” she said.

There was no reason why she should have known it was labor, and a lot of reasons why she shouldn’t have—her history of gastrointestinal trouble actually means she was unlikely to know it was different; women deliver precipitously all the time; vaginal birth changes the musculature such that later deliveries tend to be much faster than first-time births. And given that she was a month away from her due date, she was more likely to think she was not in labor.

Inside Ilopango, the women’s prison, Christina met eight or nine women convicted of abortion-related crimes. Amid the hundreds of women imprisoned in the crowded women’s cells of Ilopango, they stuck together.

Like all prisons, Ilopango had a social hierarchy. According to Christina, the drug traffickers and mass-murderers were treated the best. The other inmates applauded them. The worst treatment, by contrast, was reserved for those who had killed their children. “Te comiste a tus hijos” (“You ate your children”), they called out in passing to her and to the others incarcerated for abortion-related offenses.

After almost two years in prison, one of the other abortion inmates introduced Christina to Munoz, who was her lawyer. Munoz quickly spotted the judicial error in Christina’s case. In El Salvador, as in the United States, judges are not permitted to revise the charges against a criminal defendant. Only the prosecutor can determine what crimes to charge.

Munoz submitted a motion seeking a new trial, arguing the court had overstepped its bounds by convicting her of a crime with which she had not been charged. The state quickly responded, offering to release Christina for time served. Christina was happy to go home to her son and her family, and opted not to seek a new trial and the chance to clear her name.

For Munoz, Christina’s case was just one among a score of similar cases, one in which justice came relatively easily.

About the Author 

Michelle Oberman is the Katharine and George Alexander Professor of Law at Santa Clara University School of Law and an internationally recognized scholar on the legal and ethical issues surrounding adolescence, pregnancy, and motherhood. She works at the intersection of public health and criminal law, focusing on domestic and international issues affecting women’s reproductive health. Her book When Mothers Kill (2008) won the Outstanding Book Award from the Academy of Criminal Justice Sciences. Her new book, Her Body, Our Laws: On the Front Lines of the Abortion War, from El Salvador to Oklahoma, comes out in January 2018.