It was a sunny midafternoon in a shiny new global-economy mall in San Salvador, the capital city of El Salvador, and a young woman I was hoping to meet appeared to be getting cold feet. She had agreed to rendezvous with a go-between not far from the Payless shoe store and then come to a nearby hotel to talk to me. She was an hour late. Alone in the hotel lobby, I was feeling nervous; I was stood up the day before by another woman in a similar situation. I had been warned that interviewing anyone who had had an abortion in El Salvador would be difficult. The problem was not simply that in this very Catholic country a shy 24-year-old unmarried woman might feel shame telling her story to an older man. There was also the criminal stigma. And this was why I had come to El Salvador: Abortion is a serious felony here for everyone involved, including the woman who has the abortion. Some young women are now serving prison sentences, a few as long as 30 years.
More than a dozen countries have liberalized their abortion laws in recent years, including South Africa, Switzerland, Cambodia and Chad. In a handful of others, including Russia and the United States (or parts of it), the movement has been toward criminalizing more and different types of abortions. In South Dakota, the governor recently signed the most restrictive abortion bill since the Supreme Court ruled in 1973, in Roe v. Wade, that state laws prohibiting abortion were unconstitutional. The South Dakota law, which its backers acknowledge is designed to test Roe v. Wade in the courts, forbids abortion, including those cases in which the pregnancy is a result of rape or incest. Only if an abortion is necessary to save the life of the mother is the procedure permitted. A similar though less restrictive bill is now making its way through the Mississippi Legislature.
In this new movement toward criminalization, El Salvador is in the vanguard. The array of exceptions that tend to exist even in countries where abortion is circumscribed — rape, incest, fetal malformation, life of the mother — don't apply in El Salvador. They were rejected in the late 1990's, in a period after the country's long civil war ended. The country's penal system was revamped and its constitution was amended. Abortion is now absolutely forbidden in every possible circumstance. No exceptions.
There are other countries in the world that, like El Salvador, completely ban abortion, including Malta, Chile and Colombia. El Salvador, however, has not only a total ban on abortion but also an active law-enforcement apparatus — the police, investigators, medical spies, forensic vagina inspectors and a special division of the prosecutor's office responsible for Crimes Against Minors and Women, a unit charged with capturing, trying and incarcerating an unusual kind of criminal. Like the woman I was waiting to meet.
I was on my sixth cup of coffee when I spotted my contacts — two abortion rights advocates who work in the region and a local nurse who had heard this young woman's story. They entered the lobby surrounding another woman like Secret Service agents. A quick glance let me know that I shouldn't make a premature appearance. Even as I retreated to some large sofas, I could hear the Spanish flying — words of comfort, of being brave, of the importance that others understand what is happening in El Salvador. At last the retinue approached. I was not quite ready for what I saw. The woman, I had been told, lived in a hovel in a very poor part of the town. Somehow that had put a certain picture in my head. I don't know, call it sexism. I just didn't expect to see a tall and strikingly beautiful woman with the kind of big grin that could very well appear in one of those full-page ads you might see in an airline magazine inviting people to "Vacation in El Salvador!"
We chatted briefly about the one thing I knew we had in common — malls — before we went up to a quiet hotel room, where she and I could talk. One intermediary acted as our interpreter. I agreed to call her by her initials, D.C.; she is afraid to be identified by name, though she did agree to be photographed. (While it was impossible to confirm every detail of her story, I did later see legal records that corroborated her description of events.) D.C. sat down, and now that we were ready to talk about her experience, she started to cry. She wiped her eyes several times with a paper napkin. She spent a few minutes folding and twisting it. D.C. crossed her ankles and stared down at the shrinking napkin, now tightly compacted into a large pill. Then she began to tell me her story.
I worked in a clothing factory two years ago. I have a son, 7 years old. Well, when I found out I was pregnant, I didn't know what to do. I told my friend. She told me if I was going to have it, I needed to think about that. I had a child already. I told the father. He said he didn't want another child. He didn't want to deal with problems like this. My mother told me she would kick me out if I ever got pregnant again.
I started talking to my friend. Every day was so hard. I cried, and I didn't do anything. I didn't want to see anybody, and I didn't sleep. My friend told me to go to a man, and he gave me some pills. I was two months pregnant. He said that I could put them in my vagina. I did, and after that I just bled a couple of times. Two months more went by. I was still pregnant. I cried and didn't know what to do. When I was about four months along, my friend told me one of her friends lived near a house where there was a woman who did abortions. I felt so worried. I didn't know what to do, whether I should go talk to the woman. But then one day, I went.
With the signing of the Chapultepec Agreements in Mexico in 1992, El Salvador's civil war came to an end. As the nation turned away from its violent years, there were calls from both sides of the political divide that it was time to re-examine certain social issues. One of them was abortion. The country's abortion law, like the law in most Latin American countries at the time, was already a near-ban with only a few exceptions, specifically in cases of rape, serious fetal malformation and grave risk to the mother's life. For decades, the law was rarely discussed, and enforced quietly and somewhat subjectively. Once the issue was raised in the political arena, though, Salvadorans discovered that a brand-new kind of discourse on abortion had emerged in Latin America.
In El Salvador, a mostly Catholic country, abortion first surfaced as a potent political issue in 1993, when conservative members of the Assembly proposed that Dec. 28, the Catholic Feast of the Holy Innocents, be declared a national day to remember the unborn. In 1995, the FMLN — the former guerrilla force that had transformed itself into the country's main left-wing party — supported a very different proposal in the National Assembly. The proposal addressed a variety of women's issues, including domestic violence and rape. It also contained a provision to extend the abortion exceptions to include cases in which the mother's mental health was threatened, even if her life was not. This liberalizing proposal was rejected, but it provoked a debate, which in turn had the effect of raising the political heat around the subject of abortion.
Also in 1995, Pope John Paul II appointed a new archbishop for San Salvador, Fernando Sáenz Lacalle. Archbishops in El Salvador inherit a potent history. During the civil war, many members of the clergy in El Salvador were proponents of liberation theology, a liberal — some would say radical — evangelical doctrine of social justice. The movement was despised by the country's right-wing leaders. In 1980, in a hospital chapel, Archbishop Óscar Arnulfo Romero, a proponent of liberation theology, was shot and killed by a right-wing death squad while celebrating Mass. His replacement, Arturo Rivera Damas, was also a supporter of liberation theology.
The pope's appointment of Lacalle 11 years ago brought to the Archdiocese of San Salvador a different kind of religious leader. Lacalle, an outspoken member of the conservative Catholic group Opus Dei, redirected the country's church politics. Lacalle's predecessors were just as firmly opposed to abortion as he was. What he brought to the country's anti-abortion movement was a new determination to turn that opposition into state legislation and a belief that the church should play a public role in the process. In 1997, conservative legislators in the Assembly introduced a bill that would ban abortion in all circumstances. The archbishop campaigned actively for its passage.
"The ban was part of a backlash," I was told by Luisa Cabal, the legal consultant for Latin America at the Center for Reproductive Rights, an abortion rights organization based in New York. The proposed bill, Cabal said, was a result of "the church's role in pushing for a conservative agenda." With the archbishop's vocal support of the ban and conservative groups fully energized, opposition soon became difficult. Any argument in favor of therapeutic abortion was met with a religious counterargument.
Julia Regina de Cardenal runs the Yes to Life Foundation in San Salvador, which provides prenatal care and job training to poor pregnant women. She was a key advocate for the passage of the ban. She argued that the existing law's exception for the life of the mother was outdated. As she explained to me, "There does not exist any case in which the life of the mother would be in danger, because technology has advanced so far." De Cardenal was particularly vehement in responding in print to her opponents. As she wrote in one Salvadoran newspaper column in 1997, "The Devil, tireless Prince of Lies, has tried and will continue to try to change our laws in order to kill our babies."
Positions on the strengthened ban essentially split along party lines, at least at first. "The majority of our leadership came out in opposition," Lorena Peña, an FMLN representative in the Assembly, told me. But the FMLN held only a minority of the seats in the 84-member Assembly, and they were unable to stop the bill. The proposal to ban all abortions passed the Assembly in 1997 and became the law of the country in April 1998.
"But that was not enough," de Cardenal later wrote in an article recounting the victory. In 1997, her foundation also proposed a constitutional amendment that would recognize the government's duty to protect life from the time of conception.
A proposed constitutional amendment in El Salvador has to pass two important votes. It must be accepted by a majority in one session of the Assembly and then, after a new election, ratified by a two-thirds vote in the next Assembly. During the first vote, in 1997, FMLN legislators stood against the amendment, but they were outvoted, and the amendment passed the first round.
In January 1999, as the issue headed toward the second vote in the Assembly, Pope John Paul II visited Latin America. "The church must proclaim the Gospel of life and speak out with prophetic force against the culture of death," he declared in Mexico City."May the continent of hope also be the continent of life!" De Cardenal says that the pope's visit re-energized supporters of the constitutional ban. As the vote neared, her group rolled out a series of radio ads in favor of the amendment and presented legislators with a petition of more than 500,000 signatures. At one demonstration, members of the group sprinkled the National Assembly with holy water. To punctuate her campaign, de Cardenal arranged to have two pregnant women come to the Assembly and have ultrasounds publicly performed on their fetuses.
The leadership of the FMLN, afraid that the party would be trounced in the coming elections if they were on the record as opposing the amendment, freed its deputies from their obligation to follow the party's position and urged them to vote with their consciences. When the final vote was taken, the amendment passed overwhelmingly.
The legislative battle and its outcome did not escape the attention of leaders of anti-abortion groups in the United States. Rev. Thomas J. Euteneuer, the head of Human Life International, based in Virginia, is intimately familiar with the campaign in El Salvador and says that there are lessons for Americans to learn from it. For one thing, as Euteneuer sees it, the Salvadoran experience shows that all moves to expand abortion rights are pushed through by "elite" institutions of government (the U.S. Supreme Court, for example); by contrast, Euteneuer contends, when the laws are tightened, a grass-roots campaign is inevitably responsible. "El Salvador is an inspiration," he told me recently, an important victory in what he called "the counterrevolution of conscience."
Today, Article 1 of El Salvador's constitution declares that the prime directive of government is to protect life from the "very moment of conception." The penal code detailing the Crimes Against the Life of Human Beings in the First Stages of Development provides stiff penalties: the abortion provider, whether a medical doctor or a back-alley practitioner, faces 6 to 12 years in prison. The woman herself can get 2 to 8 years. Anyone who helps her can get 2 to 5 years. Additionally, judges have ruled that if the fetus was viable, a charge of aggravated homicide can be brought, and the penalty for the woman can be 30 to 50 years in prison.
D.C.: When we got to the woman's house, there was so much disorder. It was all a mess. We talked, and she felt my stomach and said: "Yeah, I can do it. Come back in four days." I asked how she would do it, and she said, With a probe.
On that day, I came in and was told to lie down. It was not even a bed. There was just so much disorder. She asked me to take off my clothes, and she put a shirt on me. She came with a piece of cloth and put it underneath my nose, and I felt a little numb. She came back with a long wire, like a TV antenna. It was not like a doctor's instrument. It was just a wire tube with another wire inside it. She put some oil on it and told me to breathe deeply.
She put it in. And she was scraping around. I was supposed to be asleep. But I felt pain. I told her it hurt. She said, "Yeah, we're almost done." But she kept scraping around, and I said: "No, no, stop. It's hurting me." Then she said, "It's done."
She said I would have a fever and I should not go to the doctor or they would report me. That night everything was O.K. So I went to sleep.
"Back-alley abortion" is a term that has long been part of the abortion debate. In the United States, in the years since Roe v. Wade, it has come to seem metaphorical, perhaps even hyperbolic, but it happens to conjure precisely D.C.'s experience. And it's easy in El Salvador to find plenty of evidence that D.C.'s story is neither isolated nor the worst case. A report by the Center for Reproductive Rights offers this grim list of tools used in clandestine abortions: "clothes hangers, iron bars, high doses of contraceptives, fertilizers, gastritis remedies, soapy water and caustic agents (such as car battery acid)." That list is meant to disgust a reader in the same way that imagery of mangled fetuses is meant to when employed by those who oppose abortion. But the criminalization of abortion in the modern age, in El Salvador at least, is not so simple as a grim return to the back alley. For the most part, the new law has not resulted in a spike in horror stories of painful and botched clandestine procedures.
To begin with, when a woman might face jail time for an abortion, she's less likely to discuss her pregnancy at all. According to a study on attempted suicide and teen pregnancy published last year by academics at the University of El Salvador, some girls who poison their wombs with agricultural pesticide (its efficacy being a Salvadoran urban legend) would rather report the cause of their resulting hospital visit as "attempted suicide," which is not as felonious a crime nor as socially unbearable as abortion. "They don't want to be interviewed about abortion," Irma Elizabeth Asencio, one of the study's authors, explained to me. "They know they have committed a crime."
Abortion as it exists in El Salvador today tends to operate on three levels. The well-off retain the "right to choose" that comes of simply having money. They can fly to Miami for an abortion, or visit the private office of a discreet and well-compensated doctor. Among the very poor, you can still find the back-alley world described by D.C. and the others who turn up in hospitals with damaged or lacerated wombs. Then there are the women in the middle; they often rely on home-brewed cures that are shared on the Internet or on a new underground railroad that has formed to aid them.
"I keep two telephones in my purse," I was told in San Salvador by one woman who wished not to be identified because her work is illegal. I'd heard of her through an abortion rights advocate, and I asked to meet her in person. "One phone is for work and personal matters," she went on to explain in fluent English. "The second one is for the other thing." Although she doesn't work directly in women's health care, her job keeps her traveling and in contact with people working for health groups and women's rights groups who do outreach throughout the country. "I would estimate that there are about 20 people who are working in different and specific places who have this phone number," she said. They pass it along when they think it is necessary.
And so when the phone rings, she has to decide whether the woman seeking an abortion is legitimate or not. On occasion, she has turned off the phone after a suspicious call. "You need to be careful, especially when the people who call are young people," she said. "One day they think one thing and the next day another thing. And they know your information." Her practice is first to find out the crucial facts of the pregnancy; then, if she decides she's willing to help, she calls a doctor she knows who lives in a neighboring country.
"When I'm calling the doctor, I never say on this telephone, 'Someone needs an abortion,"' she told me. "Rather, I might say, 'We have a situation here.' When we talk about the details, like how many weeks along she is, the doctor might ask me, 'What time is it?' I might say it's 8 o'clock, meaning the patient is eight weeks along." After all the details are worked out in code, the doctor flies in. The abortion — usually nonsurgical — is performed without charge.
"No one ever learns the doctor's name or where she's from," she said.
A doctor who works this underground circuit also agreed to meet me and discuss abortion. She seemed terrified the entire time we spoke. She constantly glanced around the cafe where we had coffee with an interpreter. She ended every paragraph with a plea not to reveal any details that might identify her. But she said she wanted to explain how abortions are done in El Salvador. Most women with some education or access to the Internet quickly learn about misoprostol, she said. It is an ulcer drug that, when inserted in the vagina, can provoke contractions and cause bleeding that looks, in an emergency room, just like a miscarriage.
"I show people how to put the misoprostol in and tell them that when they go to the hospital just to say, 'I started bleeding,"' this doctor explained. "There is no way that can be detected." The only problem, she went on to say, was that "some women go right to the hospital when there's initial staining." Then, if a doctor or nurse finds a half-dissolved pill during a pelvic exam, they are obliged to call the police.
According to nearly a dozen doctors and nurses I interviewed in San Salvador, there has been a decline in the incidence of harrowing coat-hanger/pesticide-type abortions in the time since the law was passed. (No official national statistics were available.) But the doctors I spoke to also noted — again, anecdotally — that there were still consistent numbers of pregnant women coming to the hospital with unexplained bleeding. The consensus was that more and more women were learning about misoprostol. In El Salvador, misoprostol is sold under the name Cytotec. Type that word alongside "abortion" into Google, and it becomes apparent that the old back alley of witch doctors with coat hangers could be deserted soon, replaced by online dealers peddling ulcer drugs.
In some ways, D.C.'s personal story is a transitional tale between an old world and a new one. She apparently tried the misoprostol abortion but got the wrong information about the dosage. Her later desperation and confusion about how the drug worked is what drove her, at last, into the house of a traditional back-alley abortionist.
D.C.: At 2 a.m., I started to shake. I had a fever and convulsions. My mama came, and I told her I was cold. She put more clothes on me. The next day I was fine and went to work. I started to feel bad pain but kept working. That night another fever came, and shaking. Mama said she was taking me to the doctor, and I said no. That night I began to convulse again and the pain was stronger. I didn't go to work the next day. I went to the bathroom and bled heavily.
Two days later, on Friday, even my hands and feet were hurting. My kid was sick, he had a cold. I took my son to the doctor, who asked if it was me who was there to see him. I said it was my child, and he said, "You're yellow, like hepatitis." Then I was crying because he touched me on the stomach and liver and it hurt a lot. He asked me if I was sure I was O.K. because I looked bad. When I left the clinic, I couldn't walk. My sister went to look for a cab.
Several days later, I was back at the doctor. They did some tests and called an ambulance. At the hospital they asked me what I had. I didn't want to say. I said I felt bad. They did tests on my urine, blood and lungs and found I had a severe respiratory infection. They did an ultrasound and found my kidneys, lung and liver were infected. And the ultrasound showed something else. They asked me: "Why do you have a perforated uterus? What have you done?" Then they did a vaginal exam, and it was the most painful thing for me in the world. They put something in me, and I cried out. They had two doctors holding me down. They said they knew I had had an abortion because my uterus was perforated and big and they would have to operate immediately. All I remember was going to the operating room, and then I don't remember anything because for the next six days I was in a coma.
"When we get a call from a hospital reporting an abortion," said Flor Evelyn Tópez, "the first thing we do is make sure the girl gets into custody. So if there is not a police officer there, we call the police and begin to collect evidence." Tópez is a prosecutor in the district of Apopa in San Salvador, a part of town noted for its poverty, crime and gang violence. She is a compact and tense woman. She wears a beautiful silver cross around her neck with smaller matching crosses for earrings. Her hair is pulled into a tight narrow bun across her head, held in place by small plastic flowers. Her gaze beams from steady eyes, each haloed in cobalt mascara.
Nationwide, after the ban came into effect in 1998, the number of legal cases initiated nearly doubled, according to a study published in 2001 by the Center for Reproductive Rights. Today the number of abortion cases investigated each year averages close to 100, according to Luz McNaughton and Ellen Mitchell, policy consultants with Ipas, an abortion rights advocacy group in Chapel Hill, N.C., who gathered the statistics for a study to be published later this year by the American Journal of Public Health. In 2004, the most recent year for which any statistics are available, there were 93 investigations of people associated with a clandestine abortion. In 2003, there were 111 investigations; in 2002, there were 85. (El Salvador's population is 6.5 million, roughly that of Massachusetts.) The vast majority of charges are brought against the woman or the provider. In a few cases, the boyfriend or mother or someone else who has helped out is also charged. Typically, the woman can avoid prosecution altogether if, after she is arrested, she names the provider.
When the woman is first detained, the form of custody can vary. Wandee Mira, an obstetrician at a hospital in San Salvador, told me that she had seen "a young girl handcuffed to her hospital bed with a police officer standing outside the door." In El Salvador, a person accused of a major crime is typically held in jail in "preventative detention" until the trial begins. Tópez, who said she had prosecuted perhaps 10 or 15 abortion cases in the last eight years, said that she took the severity of the case into account and sometimes argued for "substitutive measures instead of jail," like house arrest, while the accused was awaiting trial. My impression was that Tópez was emphasizing such relative leniencies as house arrest instead of detention, as well as suspended sentences for women who report the abortionist, because, like most people, she was uncomfortable with the inevitable logic that insists upon making a woman who has had an abortion into a criminal. Even Regina de Cardenal, whose group was instrumental in passing the ban, could not quite square the circle.
"I believe the woman is a victim," de Cardenal told me. "The criminals are the people who perform the abortions." When pressed about the fact that the law she helped pass does treat the woman as a criminal, she said: "Yes, it's part of the law of our country. Because the woman has murdered her baby — and that's why she is sent to jail. But I believe that the woman who is sent to jail remains a victim of the abortion doctor, the abortionist, who knows exactly what he is doing."
In the United States, this conundrum is only beginning to emerge, as it did on "Meet the Press" in October 2004, when Tim Russert, the host, asked Jim DeMint, a South Carolina Republican representative then in the middle of what turned out to be a successful campaign for the U.S. Senate, to explain his position in favor of a total ban on all abortion procedures. DeMint was reluctant to answer Russert's repeated question: Would you prosecute a woman who had an abortion? DeMint said he thought Congress should outlaw all abortions first and worry about the fallout later. "We've got to make laws first that protect life," he said. "How those laws are shaped are going to be a long debate."
Russert refused to leave the congressman alone. "Who would you prosecute?" he persisted.
Finally DeMint blurted, "You know, I can't come up with all the laws as we're sitting right here, but the question is, Are we going to protect human life with our laws?"
In El Salvador, the law is clear: the woman is a felon and must be prosecuted. According to Tópez, after a report comes in from a doctor or a hospital that a woman has arrived who is suspected of having had an abortion, and after the police are dispatched, investigators start procuring evidence of the crime. In that first stage, Tópez has 72 hours to make the case to a justice of the peace that there should be a further investigation. If enough evidence is collected, she presents the case before a magistrate to get authorization for a full criminal trial before a judge.
During the first round of investigations, police officers interview the woman's family and friends. "The collecting of evidence usually takes place where the events transpired — by visiting the home or by speaking with the doctor at the hospital," Tópez said. In some cases, the police also interrogate people who work with the woman. Tópez added that that didn't happen very often because, she said, "these are women who don't work outside the home." (Indeed, the evidence suggests that the ban in El Salvador disproportionately affects poor women. The researchers who conducted the Journal of Public Health study found that common occupations listed for women charged with abortion-related crimes were homemaker, student, housekeeper and market vendor. The earlier study by the Center for Reproductive Rights found that the majority were domestic servants, followed by factory workers, ticket takers on buses, housewives, saleswomen and messengers.)
As they do in any investigation, the police collect evidence by interviewing everyone who knows the accused and by seizing her medical records. But they must also visit the scene of the crime, which, following the logic of the law, often means the woman's vagina.
"Yes, we sometimes call doctors from the Forensic Institute to do a pelvic exam," Tópez said, referring to the nation's main forensic lab, "and we ask them to document lacerations or any evidence such as cuts or a perforated uterus." In other words, if the suspicions of the patient's doctor are not conclusive enough, then in that initial 72-hour period, a forensic doctor can legally conduct a separate search of the crime scene. Tópez said, however, that vaginal searches can take place only with "a judge's permission." Tópez frequently turned the pages of a thick law book she kept at hand. "The prosecutor can order a medical exam on a woman, because that's within the prosecutor's authority," she said.
In the event that the woman's illegal abortion went badly and the doctors have to perform a hysterectomy, then the uterus is sent to the Forensic Institute, where the government's doctors analyze it and retain custody of her uterus as evidence against her.
D.C.: After I came out of the coma, they moved me to the maternity hospital. My brother visited and asked me if the police had come to ask me questions. He said the police had come to our house and they had interrogated our relatives and neighbors. They had gone to where I worked. They asked everyone a lot of questions about me and who I was and if they knew whether I was pregnant and whether I'd had an abortion.
When I got home, the prosecutor came to see me, and he asked lots of aggressive questions. He talked to me like I was a criminal. I didn't want to answer because I was scared. He said if I didn't answer, even though I was in bad physical shape, he would put me in jail. He wanted me to tell him who the father of the child was and the name of the person who had done this to me. I didn't know her name. Then he made a date for me to come to the prosecutor's office.
Doctors in El Salvador now understand that it is their legal duty to report any woman suspected of having had an abortion. Abortion rights advocates point out that Salvadoran law also spells out a conflicting responsibility: the doctor's duty to keep the patient's medical information confidential. What this blurring of medical and legal obligations means, in practice, is that doctors have to choose for themselves what to do. The result is a country in which some doctors eagerly report women, some eagerly search for loopholes to avoid having to report and some simply want to stay out of trouble.
"Many doctors are afraid not to report," says Mira, the obstetrician I spoke to. This fear is heightened for doctors, she explains, by the fact that nurses also have a legal duty to report abortion crimes but are often confused about their obligation of confidentiality. So doctors are afraid that the nurses will report them for not reporting. "The entire system is run on fear," Mira said.
One morning, I got permission to hang out all day at Hospital Nacional de Maternidad, a large public hospital in San Salvador, and talk with doctors there. Somehow the Salvadoran government learned of my visit, and the federal Ministry of Health dispatched an "escort" to accompany me the entire day. The chief of the OB/GYN residents was Carmen Vargas, a young doctor with a fondness for eyeliner and lipstick. Like that of many doctors in El Salvador, her sense of the whole issue is that, regardless of what she might think personally, the law obligates her to turn women in. In the last year or so, she reported one young woman herself and was present when another was reported. For Vargas, the cases were pretty cut and dried. "When we see physical evidence, we are required to report," she explained, "because the doctor and the institution can be charged."
The physical evidence in a case can be supported by other clues. Vargas said that in medical school she read in a gynecological textbook, published in the late 1990's in Chile, that the doctor should listen carefully to the patient's story. If the woman is "confused in her narrative," Vargas said, that could well indicate that she'd had an abortion.
Vargas offered me an example. "Last year, in March, we received a 15-year-old who came referred from a hospital in an outer area," she said. "She had a confused patient history. She had already been operated on and had a hysterectomy and had her ovaries taken out. She was in a delicate state, on respiratory assistance in intensive care. The doctors there said they had seen a perforation in the space beneath the cervix.
"This was around Eastertime last year, and the prosecutor's offices were closed," Vargas said. She had not seen any of the evidence herself, she said, but saw that the other doctors "had tried to call the prosecutor's office, but it was closed. I came in, and on the chart what was pending was to call the police. So I called them."
Vargas remembered that the police interviewed her but asked only general questions. "The hard part was when I was called as a witness," she said. "That lasted a whole day. That was really ugly, and it was first time I ever testified. They asked me if I had noticed anything suspicious or if I had heard anything about the girl."
Vargas told the prosecutor that the girl's stepfather "asked me not to call the prosecutor's office because it would be better for the girl if I didn't call." She fixed me with a look. "I didn't think it was for the girl that he was asking me not to call." Vargas said her hunch was that the man was abusing his stepdaughter, and she said that she felt that she was doing the 15-year-old a favor by turning her in for felony abortion.
"It's a hard question as to whether I did the right thing," she said. "I think part of it is not right, from the point of view that you can expose the life of the patient, and because it can cause women not to seek care. But at the same time, I felt I did the right thing. I suspect she was abused in her own house. I felt like it was helping her get away from a possible bad situation."
As it happened, I located this particular patient, who resolved her case without going to jail. Two of the activists I met made contact with her by cellphone. At first, the family agreed that I should meet this young woman, but at the last minute the stepfather intervened. He said he didn't think his stepdaughter should tell her story. After that, no one answered our calls.
D.C.: At the prosecutor's office, I met a woman. She said if I talked, I might have a chance to stay free. She said there was no worse punishment than that I couldn't have any more children. So why not talk? Why defend this person? So she gave me another date to come back and talk. I told my mama, but she said that if I told them who the woman was, the woman could take revenge on my family. I didn't know what to do. But I decided to stay free and so I told her everything.
I went back to work, and everybody knew what I had done because the police had come. I was scared because I didn't know what they would say about me. A lot of people wouldn't talk to me, but some people said: "Here's my little girl! My little girl has come back!" I felt good. They loved me and they said, "It was a mistake, and everybody makes mistakes."
Later the prosecutor called again and told me I would need to go to court and hear from the judge whether I would be free or go to jail.
A policy that criminalizes all abortions has a flip side. It appears to mandate that the full force of the medical team must tend toward saving the fetus under any circumstances. This notion can lead to some dangerous practices. Consider an ectopic pregnancy, a condition that occurs when a microscopic fertilized egg moves down the fallopian tube — which is no bigger around than a pencil — and gets stuck there (or sometimes in the abdomen). Unattended, the stuck fetus grows until the organ containing it ruptures. A simple operation can remove the fetus before the organ bursts. After a rupture, though, the situation can turn into a medical emergency.
According to Sara Valdés, the director of the Hospital de Maternidad, women coming to her hospital with ectopic pregnancies cannot be operated on until fetal death or a rupture of the fallopian tube. "That is our policy," Valdés told me. She was plainly in torment about the subject. "That is the law," she said. "The D.A.'s office told us that this was the law." Valdés estimated that her hospital treated more than a hundred ectopic pregnancies each year. She described the hospital's practice. "Once we determine that they have an ectopic pregnancy, we make sure they stay in the hospital," she said. The women are sent to the dispensary, where they receive a daily ultrasound to check the fetus. "If it's dead, we can operate," she said. "Before that, we can't." If there is a persistent fetal heartbeat, then they have to wait for the fallopian tube to rupture. If they are able to persuade the patient to stay, though, doctors can operate the minute any signs of early rupturing are detected. Even a few drops of blood seeping from a fallopian tube will "irritate the abdominal wall and cause pain," Valdés explained. By operating at the earliest signs of a potential rupture, she said, her doctors are able to minimize the risk to the woman.
One doctor, who asked to remain anonymous because of the risk of prosecution, explained that there are creative solutions to the problem of ectopic pregnancies: "Sometimes when an ectopic pregnancy comes in, the attendant will say, 'Send this patient to the best ultrasound doctor.' And I'll say, 'No, send her to the least-experienced ultrasound doctor.' He'll say, 'I can't find a heartbeat here.' Then we can operate."
This doctor also told me that there are ways to avoid reporting an abortion. "I can only say what I saw when I examined the patient," the doctor said. "If I can see lacerations or cuts, I cannot say what that means if the patient says, 'I have done nothing.' I can describe what I saw, but I cannot say she has or has not had an abortion."
The doctor pondered a hypothetical situation: "If the patient says, 'Yes, I did it, but please keep that between us'?" There was a pause. "I keep that promise. The confidentiality right is more important than the legal duty to report."
D.C.: A month later, I got my exact court date. I spent the day crying and crying. I took the bus from work to the court. I didn't tell my mom where I was going because she would want to come. I didn't know what was going to happen. I just told one friend, and she was waiting for me. I got there, and the judge began the proceeding, and he said I would go free, that what they were going to do was look for the person who had done this to me and that I had no reason to go to jail. I was so happy, so very happy.
In prosecutors' offices in El Salvador, as in prosecutors' offices anywhere, longer sentences are considered better sentences. "The more years one can send someone away for," I was told by Margarita Sanabria, a magistrate who has handled several abortion cases, "the better it is for the prosecutors." She cited this motivation to account for what she has observed recently: more later-term abortions being reclassified as "aggravated homicide." If an aborted fetus is found to have been viable, the higher charge can be filed. The penalty for abortion can be as low as two years in prison. Aggravated homicide has a minimum sentence of 30 years and a maximum of 50 years.
The issue of proving viability after an abortion is a tricky one, of course. There is no legal standard. But many of the people I talked to in El Salvador, including Tópez, the prosecutor, said there was a rule of thumb: if an aborted fetus weighs more than 500 grams, or a little more than a pound, then you can argue that the fetus was viable. When I mentioned this to Judge Sanabria, she said she wished she had known more about the rule before. She recalled one case, that of a 20-year-old mother named Carmen Climaco, whose abortion of a fetus estimated at 18 weeks had been recast by the prosecutor as aggravated homicide. The judge admitted that if she had known this rule of thumb, she might not have sent the case to trial. "I feel bad about it," she said.
But the case did go to trial, and the prosecutor won a conviction for aggravated homicide. At trial, the evidence included lifting Climaco's fingerprints from the fetus, which was found under her bed. The prosecutor's accusation was infanticide by strangling.
The women's prison where convicted murderers are sent is in the outer district of Tonacatepeque. I visited it in January. It's an old, creaky facility that inspires the kind of dread that comes of seeing concertina wire and much-painted cinder blocks, made all the creepier by a paint choice of baby-boy blue. Inside the first gate is a neutral area. It's filled with almond trees that provide a flickering shade on a hot winter afternoon. All the women are kept in a deeper jail, walled off inside. Through a small window, I could see an open area crisscrossed by laundry lines and arrayed by different women lying around smoking.
I was there to see Carmen Climaco. She is now 26 years old, four years into her 30-year sentence. She has three children, who today are 11, 8 and 6 years old. We talked about them for a while. Since she was the only person in the family who worked, her children's financial situation is precarious; they now stay with their grandmother. Climaco said she lives for their visits, which are brief and come only twice a month. She was dressed in red jeans and a white polo shirt. We sat with an interpreter in the half-shade in green plastic yard chairs. Climaco had a paper napkin with her that she folded and folded into a familiar-looking pill. She had light brown hair, and occasionally a smile steadied her trembling lips.
"I became pregnant at a time when my smallest child was in the hospital," she said. "I never thought I could get pregnant because I had been sterilized. Suddenly I saw two doors shutting at the same time. There was nothing I could do. My mother said she'd toss me out of the house if I got pregnant."
Her story came out in fits and starts. She said that she was innocent and had never done anything illegal. Then she said, "I keep asking God to pardon me for what I've done." She said that the day it happened, she felt dizzy and collapsed at home. She woke up covered in blood. "I stood up and it felt like something fell out of me." It took her a while to understand just what had happened. "I put my hand on its throat to see if it was moving," she said, "which is why my fingerprints were found on its neck."
I spent the better part of an hour watching Carmen Climaco's face, listening to her whimpering pleas to Jesus Christ for forgiveness and tiny prayers to me to believe in her innocence. Like anyone serving time in prison, she has inhabited the details of her story to the point that they no longer sound true or false. She has compressed her story into a dense, simple tale of innocence — she just woke up covered in blood — to hold up against the public accusation of baby-strangling. I kept looking at her face, incapable of seeing the innocent girl she described or the murderer the prosecutor sent to prison. The truth was certainly — well, not in the "middle" so much as somewhere else entirely. Somewhere like this: She'd had a clandestine abortion at 18 weeks, not all that different from D.C.'s, something defined as absolutely legal in the United States. It's just that she'd had an abortion in El Salvador.
Jack Hitt is a contributing writer for the New York Times. He has written for the magazine on a number of topics, including the availability of abortion in the United States.
