Retrial Begins for the ‘Aggravated Homicide’ of a Miscarriage

SAN SALVADOR, El Salvador (CN) — Retrial begins Thursday for a young Salvadoran woman facing 30 years in prison for the “aggravated homicide” of her fetus in a miscarriage. Though a judge cleared her in the first trial, the state appealed, raising profound questions for the country’s progressive new president and the nation’s powerful Catholic Church.

Beatriz Hernandez

Beatriz Hernandez served 33 months of her 30-year prison sentence before a judge freed her this year. She said she did not even know she was pregnant by rape when she miscarried in an outdoor latrine at her rural home in 2016. Her mother brought her, barely conscious, to a hospital where the medical staff alerted the police, who took her from the hospital to jail on suspicion of inducing a miscarriage.

Because the fetus apparently had taken a breath — fecal matter was found in the lungs —the prosecutor said the peasant girl must have intended to abort, violating the strict Salvadoran prohibition of abortion.

El Salvador is one of the few countries that prohibit abortion in all cases, with no exceptions — rape, incest, to save the life of the mother — not even ectopic pregnancies can be interfered with. Only those who can afford a private doctor might escape, if authorities choose to ask no questions about medical procedures.

But those who use public medical facilities have no privacy, and doctors who see obstetric emergencies are expected to call the police to investigate a possible case of self-abortion. Consequences for failing to do so include criminal penalties and loss of their medical license.

Critics of the ruthless law, including Amnesty International, say El Salvador’s total ban on abortion and its criminalization, regardless of the circumstances, strips women and girls of their physical and mental integrity and autonomy. It has resulted in the deaths of countless women and girls and the loss of dignity for many more. Some call it nothing less than institutionalized violence against women, for which the Salvadoran government is ultimately responsible.

The only “cure” is money. The Salvadoran law of medical rights of privacy permit middle-class women with private physicians to make obstetric decisions without state intervention, including to terminate a pregnancy. But the punishment for poor women without private doctors is extreme. Beatriz, like many others, was serving a 30-year prison sentence when a judge ordered her freed this year, drawing blistering comments from both sides of the issue.

An intentional abortion is punishable by eight years in prison, but if the stillborn fetus was arguably viable, the penalty is the same as for first-degree murder: 30 years. Though Beatriz said she was unaware that her rapist had made her pregnant, intent to abort was imputed to her, and she was given the maximum sentence.

The retrial comes at an opportune time for President Nayib Bukele to follow through on his campaign support for decriminalization of abortion and miscarriage. Though he does not have the power to halt proceedings, he could influence public opinion on these Draconian measures that are found nowhere else in the world.

Before 1998 in El Salvador, abortion was legal in cases of rape and threats to the life of the mother — exceptions that were not controversial at the time. But when there was movement toward liberalizing the law, the Catholic Church mobilized its resources to threaten the re-election of those who would refuse to ban the practice entirely. Given the power of the church in this overwhelmingly Catholic country, both the right and the left voted to ban abortion absolutely.

It was an ironic position for the Catholic Church to take, as for decades it had been a leading voice for El Salvador’s poor and repressed people. Now it was demanding that Catholics oppose the medical rights of poor women and calling on Catholic doctors in public facilities to inform the police of private obstetrical emergencies.

Even the quasi-left government of the FMLN couldn’t get its legislators to risk their lucrative seats in congress and speak out for women’s rights. Nearly 200 women have been prosecuted under these laws since 2000 and 17 remain in prison serving lengthy sentences. For 20 years efforts to reform the law have failed, as Evangelical churches joined the Catholic forces and blocked even discussion of the issue. Failure to address issues of concern to women — some would say targeting women — may have been one of the many reason the nation’s two main political parties, the FMLN and right-wing ARENA, collapsed this year, leading to Bukele’s election.

Discrimination against women is one of the major issues facing Bukele as he begins his presidency, and probably the most controversial. And nowhere in Latin America is the Catholic Church more committed to restricting women’s rights.

Feminist organizations in El Salvador support a woman’s right to choose, and the argument is painfully obvious in this case: the criminalization of a spontaneous miscarriage.

The trial is being watched by human rights organizations worldwide. A formidable legal team has been organized. The facts of the murder trial are compelling: the rape, autopsy, the outhouse, the poverty. No one expects the Church to change its position, leaving the eyes of the country not just on Beatriz, but on the president.

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