Between 1989 and 2009, six Latin American nations passed total abortion bans. Women in these countries are now denied abortions under every circumstance, even when a pregnancy may put their lives at risk. In El Salvador, the passage of a total abortion ban was additionally followed by a steep rise in the incarceration of women for the “aggravated homicide” of their “newborns,” often with 30-40 year prison sentences. Pro-life proponents argue vociferously that these extreme incarcerations are appropriate punishments for women who birthed healthy, full term babies and then killed them to avoid their motherly duties. Pro-choice proponents, in contrast, argue that these incarcerated women committed no crime, but rather suffered from poverty, limited medical support, and obstetrical emergencies. These women’s babies were either stillborn or died shortly after birth due to medical complications and prematurity. Yet instead of supporting the mothers with medical care and sympathy, they claim, the Salvadoran state has arrested them for abortion, upgraded their charges to “homicide,” and imprisoned them for decades.
In an effort to separate fact from politicking, Harvard sociologist Jocelyn Viterna teamed up with Salvadoran human rights lawyer Jose Santos Guardado Bautista and several medical experts to investigate 17 prominent cases of fetal “homicide” in El Salvador. In a white paper released last November, they found that the legal and medical facts in the majority of these cases correspond with medical emergency, and not with homicide. More importantly, they provide extensive documentation demonstrating that the Salvadoran state aggressively and systematically pursued women’s prosecutions, instead of pursuing the truth, throughout each of the 17 cases. Most centrally, they find that judges regularly determined women’s guilt based upon whether they upheld cultural ideals of motherhood more so than on whether there was any evidence that the women had committed a crime. Indeed, even when autopsies concluded that the cause of fetal death was “unknown,” and found no signs of foul play, Salvadoran courts still found women guilty of aggravated homicide, sentencing them to 30 or more years in jail. Viterna and Guardado conclude that the Salvadoran state has an urgent responsibility to review these women’s cases to ensure justice for those already incarcerated, and to protect future Salvadoran women from a similar fate.