Shortly after the passage of a total abortion ban in 1997, El Salvador became the first Latin American nation to routinely incarcerate poor women experiencing stillbirths and other obstetrical emergencies for the crime of “homicide.” Sociologist Jocelyn Viterna analyzes the political and cultural dynamics behind the pro-life movement’s success.
By Michelle Nicholasen
The cases are harrowing, and they keep accumulating. El Salvadoran women and girls who give birth to stillborn babies are originally charged with abortion, and then ultimately sentenced to decades in prison for “aggravated homicide.” To date, Jocelyn Viterna, professor of sociology, has collected fifty-one such cases: most are destitute young women who live far from medical care—women who didn’t even know they were pregnant, many the victims of rape. Another twenty cases involve young women incarcerated and charged with “abortion.”
Viterna learned about the first cases in the mid-2000s when she was doing research for her book about female guerilla fighters, Women in War: The Micro-processes of Mobilization in El Salvador, and she couldn’t turn away. When she looked closely at the evidence presented in each case, it was clear that gender bias was rampant in the judicial process: women were accused of murder without any forensic evidence suggesting violence to the fetus; girls who didn’t even know they were pregnant were accused of attempted murder for accidentally birthing their babies in their home latrine. She wondered, why was there automatic presumption of guilt when there was no evidence of violence?
Consulting with doctors, psychologists, pathologists, and forensic examiners, Viterna educated herself about the science of abortion, miscarriages, and stillbirths. She then started submitting briefs to the court—including statements from medical professionals—about what was known in the medical literature. Could a young woman, in fact, not know that she was pregnant? As it turns out, yes, a traumatized woman can suffer from dissociative disorder which can psychologically disconnect her from her body. Can a woman first learn of her pregnancy by giving birth in the latrine? Again, the medical literature supported this. Could an umbilical cord break on its own from a fetus’s fall into a latrine? Yes, according to medical experts. All of this she aggregated and reported in a series of “friend of the court” briefs.
“I’m not an activist. I do have my personal views, but I try strongly to keep them separated from these cases and really focus on the science and what we can know versus what is assumed based on implicit gender bias,” explains Viterna. To date, she has submitted briefs for five cases.
With high rates of murder and domestic violence, El Salvador is already known as one of the most dangerous Latin American countries for women. But its severe anti-abortion laws have become a point of national pride—a defining identity for this Catholic majority country about the size of Massachusetts. While abortion has long been illegal in El Salvador, and throughout Latin America, the laws historically were almost never enforced, and certainly not to point of incarceration. This all changed in El Salvador in 1997 with the establishment of new laws that repealed all existing exceptions to abortion—those for rape, threat to the mother’s health, and fetal deformities incompatible with life.
After the new law took effect, women started getting arrested on suspicion of abortion and aggravated murder regardless of whether or not the baby survived, or whether or not the mothers were raped, or if their own life was threatened by the pregnancy. Once convicted, they faced long prison sentences: 2–8 years for abortion, and 25–50 years for aggravated homicide.
“Not only did they take out the exceptions, they increased the penalty for abortion. They also made a new crime that people commonly refer to as “accomplice” for an abortion. Doctors were specifically told if you do not report a suspected abortion you could go to jail as well,” says Viterna.
A few years later, the Legislative Assembly passed a constitutional amendment saying life should be protected from the moment of conception. It was a tremendous victory for the Catholic Church and the international pro-life movement. Only one other country in Latin America, the Dominican Republic, has a similar amendment. Four Latin American nations have total abortion bans, and Mexico has several state-level bans and amendments.
Viterna studied twenty-five years’ worth of newspaper articles to better understand the shift in public sentiment that resulted in widespread support for criminalization.
“In 1990, you see a newspaper article about a woman who was very pregnant who went to the latrine and accidentally birthed her baby there,” explains Viterna. “They got the baby out, it was alive and healthy and everybody celebrated. It was a positive human interest story. Eleven years later, a woman in a similar situation was arrested and thrown into jail for an abortion charge that later escalated to ‘attempted aggravated homicide.’ The judge based the guilty verdict exclusively on testimony from a neighbor who said she thought the woman tried to throw away her baby. The woman finally got out of jail after serving her full twelve and-a-half-year sentence.”
Today the baby is sixteen and perfectly healthy.
As a sociologist, Viterna wanted to look back at El Salvadoran political history to understand the cultural and transnational forces behind such an extreme, institutionalized response. What gave rise to such a dramatic reversal of rights so that today in El Salvador, a woman whose life is threatened by fetal deformities is required to stay in the hospital until she gives birth, unable to get the medical intervention she needs, even when her life is on the line?
By now, Viterna has conducted dozens of interviews with activists on both sides of the issue, as well as doctors, legislators, and law enforcement figures.
She believes that the political climate in El Salvador changed after the UN International Conference on Population and Development in Cairo in 1994, which called for, among other goals, global education, family planning (i.e., birth control), and improvements in reproductive health. The Vatican feared that the message advocated population control, and responded by lauding the countries that had abortion bans, singling out and praising El Salvador for its tough laws. Thus began the country’s staunch allegiance to the global pro-life movement. Right-wing leaders in El Salvador joined forces with the international pro-life network to attack global institutions that represented “Western” values, like the UN and Amnesty International.
“They had some powerful language at the time,” says Viterna. “They talked about how this was the first world’s attempt to have fewer brown babies so that we didn’t have so much immigration to the rich countries, and so on.”
Viterna’s scholarship in the area of social change led her to a key insight: all social movements need a target. She argues that in El Salvador, when the right wing won their total abortion ban and constitutional amendment, they no longer had a focal point.
At the same time the conservatives were winning, the political landscape in El Salvador had started to change. In 1992, the socialist-inspired guerilla movement, Farabundo Martí National Liberation Front (FMLN), was given status as a political party via the UN-brokered peace agreement that ended the twelve-year civil war. For the first time, the ruling elites of the Arena party had a left-leaning opposition.
After achieving their legislative goals regarding abortion, Viterna posits, the elite politicians needed to find another target in order to reinforce their primacy—and their new target became the poor, marginalized women who were accused of committing abortion. Those women, along with the FMLN who supported them, were seen as disrupting the natural order and sanctity of motherhood. The ruling party would now put their gains into action by advocating for the enforcement of their new laws.
“This is when you start to see newspaper articles appear about women accused of abortion, described as ‘horrible’ or ‘perverse’ mothers,” Viterna says.
In a country with a strong norm of maternalism, the rhetoric played well, fomenting public antipathy against so-called “evil mothers.” Viterna believes what happened in El Salvador is a perfect case study of “moral panic.”
A term first coined by sociologist Stanley Cohen in 1972, Viterna describes moral panic as “a kind of collective hysteria that can erupt, especially when societies undergo a period of upheaval that threatens to transform traditional power relations. Moral panics work to re-impose a traditional social order by targeting as ‘villains’ or ‘folk devils’ the very marginalized group that appears to be gaining power in the transitional moment.”
In her published work, Viterna explains that by the late 1990s the beleaguered pro-choice movement in El Salvador was no match for an effective transnational pro-life network, and it soon found its political support waning. Even though the FMLN defended rights for women, it was beaten up badly in the media for its defense of abortion rights and ultimately eschewed the abortion issue out of fear of losing votes. If the women’s rights movement wanted any voice at all in the legislature, the FMLN demanded, it had to agree to back away from the abortion issue. El Salvadoran feminists, Viterna writes, “went silent on the issue of abortion from 1999 to 2009.”
Not much has changed since then. Last April, a small organization called the “Citizens Group for the Decriminalization of Abortion” spearheaded a movement to introduce legislation to bring back the pre-1997 exemptions, but the bills never made it to a vote.
Perhaps most fascinating to Viterna are the transnational forces underlying this major political and social shift.
“It is clear that the pro-life movement in El Salvador, just like the pro-choice movement, receives significant international funding. And much of the pro-life propaganda in El Salvador is actually US propaganda translated directly into Spanish,” says Viterna.
On their website, Human Life International (headquartered in Virginia) offers talking points and tactics for mobilizing the public to strengthen abortion laws, or strike down laws that allow exceptions. The propaganda is powerful. A recent fundraising email from the president of Human Life International reads:
I’m talking about population control organizations like International Planned Parenthood Federation, Marie Stopes International, and others that push harmful contraceptives on impoverished women and kill their babies when the contraception fails….
Western governments and wealthy elites, like Bill and Melinda Gates and George Soros, spend billions funding this evil—which is why your generous support of HLI is so important.
We’ve shown that we can win. In El Salvador, legislators refused to legalize abortion last April under intense international pressure. HLI’s work in El Salvador was instrumental to this pro-life victory!
“There is an incredible system behind this movement; they are highly organized and they work at many levels of society, such as college campuses, and their recruitment techniques are shared internationally,” reflects Viterna.
As part of her research, Viterna tries to interview as many people as she can on the anti-abortion side of the debate.
“I’ve interviewed many pro-life activists. I respect them, because they believe they are fighting for the rights of babies and they are very consistent in what they believe. But I think they could be more open to seeing what’s really going on in the courts, and in these girls’ lives,” says Viterna.
The pro-life movement has also been vibrant, if not as powerful, in neighboring Nicaragua, a country with striking similarities to El Salvador. It too has a total abortion ban, but doesn’t enforce the laws or put women in jail. The difference? Viterna believes that Nicaragua’s “vocal, unwavering pro-choice movement” has kept the abortion issue in a state of constant debate.
At the moment when the Salvadoran pro-life movement began targeting women, she explains, the pro-life movement in Nicaragua was busy responding to pro-choice activism. Thus, the pro-life activists in Nicaragua had a consistent target: the opposing camp. In contrast, El Salvador’s women’s rights movement’s decision to “go silent” on the subject of abortion to maintain their political ties with the FMLN opened a window for the targeting of pregnant women.
While Nicaragua’s reproductive rights movement never overturned the total abortion ban, keeping the debate active may have served to keep the status quo, Viterna believes, avoiding the escalation to criminalization.
This brings Viterna to another critical insight: “Even when movements fail, they can still win.”
It’s a statement that resonates with her own work in El Salvador.
In September, she attended the evidentiary hearing for Imelda, an eighteen-year-old girl who had been repeatedly raped by her stepfather and gave birth in a latrine. Barred from the hearing, Imelda’s mother, grandmother and toddler waited outside. The judge decided there was sufficient evidence for a trial, set a date for November, and sent Imelda back to jail.
“After waiting outside for four hours, the family was devastated by the news. The grown-ups collapsed into sobs on the street corner while Imelda’s seventeen-month-old daughter watched in confusion,” Viterna recounted.
In spite of all the disappointing outcomes she has observed, Viterna is convinced that bringing objective medical information into the court will help prosecutors become aware of the rampant bias in the system. To date, she counts seven women who have gotten out of jail, or had their sentence commuted, and an eighth who was just awarded an appeal. The recently freed women continue to advocate on behalf of those still in prison.
It’s the small openings that give Viterna hope. On her most recent trip, she met with a top human rights official in El Salvador who expressed interest in providing training workshops for doctors, so they can learn about the medical literature.
“The incarceration of women for stillbirths in El Salvador is now an institutionalized problem,” says Viterna. “If we can just generate the political will and resources to transform these institutionalized practices —to ensure that these investigations are based on science and not cultural propaganda—then we can end the wrongful incarcerations.”
—Michelle Nicholasen, Communications Specialist, Weatherhead Center for International Affairs.
Weatherhead Center Faculty Associate Jocelyn Viterna is a professor of sociology at Harvard University. Her first book, Women in War: The Micro-processes of Mobilization in El Salvador (Oxford University Press), won four distinguished book awards. She is working on a new book about the politics of reproduction in Latin America, forthcoming in 2019. Her research interests include social movements; civil society; development; democratization; transnationalism; gender; sexuality; and political violence.
1. From left to right: Kenia's daughter, Kenia, Johanna, and Teodora. Kenia, Johanna, and Teodora were each convicted of "attempted aggravated homicide" or "aggravated homicide" after accidentally giving birth into a toilet or latrine. Kenia and Johanna were sentenced to fifteen years because their babies survived the unexpected births. Teodora was sentenced to thirty years: she had called 911 when she went into labor and was waiting for an ambulance that never came when she lost consciousness and accidentally delivered in the bathroom. Forensic evidence suggested her baby was stillborn. The three women (on the right) each served at least ten years of their sentence before a local women's organization successfully petitioned to have the state commute their remaining sentences. At least twenty-four women with similar stories are still incarcerated. Credit: Jocelyn Viterna
2. This is the house where a young woman named Maria Teresa miscarried, a crime for which she was charged with forty years in prison for “aggravated homicide.” She served seven years in prison before winning a retrial in which the judge found her “not guilty.” Her son was six years old when she went into prison, and thirteen when she saw him again. After being released, the state petitioned to appeal her case, and, because it is a major crime, it was probable that she would have to go back to jail while awaiting the new trial, which could have been another two or three years. With the help of Amnesty International Sweden, she applied for and received asylum in Sweden, where she has been living with her son since the summer of 2016. Credit: Jocelyn Viterna