Cover image: Beacon.

 

Adapted from Her Body, Our Laws: On the Front Lines of the Abortion War, From El Salvador to Oklahoma by Michelle Oberman (Beacon Press, 2018). Reprinted with permission from Beacon Press.

In 1998, El Salvador passed a law banning abortion under all circumstances. Until that point, abortion was illegal except in cases involving risks to maternal life, severe fetal anomaly, and rape or incest. Since then, El Salvador has worked to enforce its ban, mounting an intensive effort to identify and prosecute those who violate the law. If we’re hoping to understand what happens when abortion is banned, El Salvador is the perfect place to study.

Regardless of whether one favors or opposes the abortion ban, it is vital that we assess the law’s impact. A law cannot be justified merely because one likes its message. Even if we like the message of the law, it is valid only to the extent that it produces results that are consistent with its message.

So what happened when abortion was outlawed in El Salvador? The evidence shows us that three things occurred: (1) abortion remained commonplace and rates did not drop even though it was illegal; (2) doctors become involved in law enforcement; and (3) innocent women were accused and convicted of abortion-related crimes. These three systems—the black market, health care, and criminal justice—all yield measurable consequences of the ban on abortion. And, as I explain below, in spite of the vast differences between El Salvador and the United States, there is good reason to expect that the United States would experience each of these three consequences were it to outlaw abortion.

Abortions Still Happen

Perhaps the most surprising thing about banning abortion is what doesn’t happen when abortion becomes a crime. Abortion does not go away. Indeed, the rates of abortion in countries with the most restrictive abortion laws are higher.

This is true in El Salvador: by the Salvadoran government’s own measure, there are tens of thousands of illegal abortions every year.  Indeed, the rate of abortion in countries with restrictive abortion laws far exceeds that of countries with far more liberal laws, such as the United States.

The correlation of high abortion rates and restrictive abortion laws does not mean that abortion bans cause more women to have abortions. Any number of factors might cause these two things—abortion bans and high abortion rates—to go together. Perhaps these countries share a religious or cultural discomfort with contraception, as well as abortion. Perhaps it is hard to get contraception. Perhaps there is little sex education.

There is one thing we know for certain: abortion doesn’t simply go away when it is made illegal. Because abortions are illegal, it is hard to get a complete picture of how women obtain them in El Salvador. What is clear beyond a doubt is that the advent of abortion drugs has completely altered illegal abortion.

Until recently, abortions were exclusively surgical procedures. Doctors would terminate pregnancies by opening the cervix and suctioning or scraping out the contents of the uterus. Women unable to find or afford a doctor to perform an illegal abortion might try bringing on a miscarriage themselves, for example, by inserting a sharp object into their uterus. Opening the cervix typically is enough to induce a miscarriage, although it carries with it high risks of excessive bleeding and infection. Historically, these so-called “botched” abortions provided the only proof of the crime of illegal abortion. Coat-hanger abortions, for example, were notorious in pre-Roe America, in part because they carried a high risk of perforating a woman’s uterus, leaving behind the telltale sign that the woman had deliberately ended her pregnancy.

Beginning in the 1990s, with the advent of abortion drugs, illegal abortion became safer and harder to detect. Taken in the appropriate dose, at the right point in pregnancy, the drug known as Mifeprex or RU-486 (mifepristone is the generic name) will safely end 98 percent of pregnancies.  Side effects include excessive bleeding or incomplete abortion, both readily resolved by a visit to a doctor.

Although they are not always safe or effective, especially when taken too late in pregnancy or at the wrong dose, compared with the risks of an illegal surgical abortion drugs such as RU-486 or Mifeprex have completely altered women’s access to illegal abortion.

In El Salvador, and throughout Latin America, women find easy access to illegal abortion drugs via the Internet. In Brazil, for example, where abortion is illegal except in cases of rape, threat to maternal life, or anencephaly (where the fetus lacks a brain), abortion drugs play a vital role in the thriving black market. An estimated one in five Brazilian women under age forty has had an abortion.  Even in a poor country like El Salvador, almost everyone has a smartphone and, provided they have money and time, can go online to purchase the drugs that will end an unwanted pregnancy.

To be sure, illegal abortion remains risky. Whether they use drugs or other means to terminate their pregnancies, many women experience complications from illegal abortion that necessitate medical attention. In Latin America, complications from illegal abortion constitute the leading cause of mortality in young women.

The inevitability of such complications has led to the second concrete change set in motion by banning abortions: doctors become entangled in the law enforcement process.

Doctors and the Problem of Detecting Abortions

If the first thing that happened when El Salvador banned abortion was the proliferation of illegal, black-market abortions, the second thing that happened was that doctors were enlisted in the law enforcement effort. The overwhelming majority of abortion cases in El Salvador begin in the hospital, with a doctor’s hunch that his or her patient has broken the law.

In 1998, Salvadoran government officials charged with implementing the newly passed abortion ban reached out to doctors to encourage them to report patients they suspected of terminating their pregnancies. Dr. Alejandro Guidos, former president of the El Salvadoran Association of Obstetricians and Gynecologists, described the state’s approach. He told me, “Officials from the Fiscalia [the state prosecutors] went to the hospitals, advising doctors that they had a legal obligation to report women suspected of terminating their pregnancies. And the hospital directors supported the obligation to report. They collaborated.”

The push to enlist doctors in enforcing the abortion law succeeded. A 2006 survey of practicing obstetricians found that more than half (56 percent) of respondents reported having been involved in notifying legal authorities about a suspected unlawful abortion.

Inevitably, a country seeking to enforce laws against abortion will seek doctors’ collaboration. Women must turn to doctors when an illegal abortion goes wrong. Doctors are therefore in the best position to spot the crime.

But there are serious problems with using doctors to enforce abortion laws. In reporting their patients, doctors break the law and violate the oldest of ethical principles—patient confidentiality. Furthermore, in the vast majority of cases, doctors cannot tell whether a woman has had an abortion or simply a miscarriage. Thus, their reports are based on hunches, rather than on medical evidence.

Law, Ethics, and Doctors’ Reports to Police

The obligation of safeguarding a patient’s secrets is ancient. For over twenty-four hundred years, medical doctors have embraced the precepts articulated in the Hippocratic oath. Recited at medical school graduations worldwide, one of the oath’s central tenets is the following pledge: “Whatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private.”

This principle is based in part on policy considerations. Confidentiality is essential to creating a solid doctor-patient relationship, dedicated to promoting the health and life of the patient. Doctors routinely treat patients whom they suspect or even know to have broken the law. The medical profession long has been clear that its job is to heal, rather than to work as agents of the police.

In El Salvador, as in other countries, including the United States, the ethical obligation of confidentiality has been enacted into law; it is illegal to share patient information. A doctor who reveals her patients’ medical information commits both a civil wrong, for which a patient might sue, and a crime, punishable by imprisonment and the suspension of the doctor’s medical license.

Regardless of these ethical and legal precepts, it’s easy to understand why a doctor might struggle when encountering evidence of an illegal abortion. If you view abortion as the taking of a life, you might be willing to call the police, even if it means violating the norms and laws governing confidentiality.

Salvadoran law supports such breaches of confidentiality by requiring doctors to report suspected crimes to the state. Because abortion is a “criminal act,” this requirement could be construed to mean that providers must report cases of unlawful abortion to police. Plainly, this was the interpretation the Salvadoran officials meant to convey when they toured hospitals in 1998.

Legally, though, they were wrong. The law explicitly excuses doctors from this duty when the information is acquired in the course of a confidential doctor-patient relationship. The law states that “[d]octors, pharmacists, nurses and other health professionals must report unlawful criminal acts that they become aware of in the context of their professional relationship, unless the information they acquire is protected under the terms of professional secrecy.”

There is no conflict under the law, then. Doctors are required to maintain patient confidentiality. Still, when the state sends prosecutors to inform hospital personnel of the need to report patients they suspect of having abortions, one can understand why doctors might comply. What happened next was both inevitable and deeply troubling.

The Diagnostic Challenge: Distinguishing Abortion from Miscarriage

It’s almost always impossible, even for doctors, to tell whether a woman has had an abortion or instead simply suffered a common spontaneous miscarriage. Indeed, miscarriage is so common an occurrence that, in Spanish, there is no difference between the word for miscarriage and the word for abortion. Any interruption of pregnancy is termed an aborto. Although women in El Salvador, like women in the United States, tend not to speak openly about losing a pregnancy to miscarriage, when they do so, they say they’ve had an aborto. There is no other way to describe their loss.

Throughout the world, as many as one in four pregnancies ends in spontaneous miscarriage. Miscarriage most often happens early in pregnancy—within the first twelve weeks. A woman having a miscarriage typically experiences what feels like a heavier period than normal, perhaps passing more blood and some blood clots, along with whatever fetal tissue remained in her uterus after the fetus stopped developing.  A woman might seek medical care following an early miscarriage, in response to heavy bleeding or cramping, or because of the risk that her body hasn’t expelled all the fetal tissue.

Herein lies the inevitable challenge for abortion law enforcement: in the absence of physical evidence such as trauma to the uterus, there is no reliable way to distinguish a woman experiencing complications from an illegal abortion from a woman who has suffered a miscarriage.

Because doctors cannot distinguish a spontaneous miscarriage from an abortion, the government will lack the evidence necessary to support a conviction against women who have early abortions. Salvadoran lawyer Dennis Munoz, who has defended more women convicted of abortion-related offenses than any other lawyer in the country, explained it this way:

Yes, there are many illegal abortions in El Salvador for sure. But how do you prosecute them without evidence? There’s a rule here called Corpus Delecti, which requires the state to prove a crime has taken place. It’s much easier to prove the crime if you have a body. To catch an early abortion, you need evidence that it’s provoked. Undissolved pills in the vagina or a perforated uterus. There has to be some evidence.

Munoz’s observation helps explain why the law has generated a line of prosecutions against women who lost their pregnancies at or close to full term, rather than prosecute cases against women who took drugs or hired someone to terminate an unwanted pregnancy. What Munoz’s observation does not explain is why reports to police are generated almost exclusively from public hospitals. When El Salvador sought to enlist doctors in enforcing its abortion ban, only those working in public hospitals complied.

The Cases: Public Hospitals, Poor Women, and Police Reports

My hunch was that a doctor’s willingness to report a woman for suspected abortion would reflect his or her personal beliefs about abortion. It turns out that I was wrong.

The first comprehensive investigation in El Salvador traced the origins of abortion prosecutions over the ten-year time frame from 2001 to 2011. By traveling across the country and visiting every criminal court, researchers identified 129 abortion prosecutions.  A doctor’s report triggered the great majority of these prosecutions. Yet not a single one of these reports was made by a doctor in private practice, seeing a paying patient.

I wondered what might make a doctor at a public hospital more willing to act on suspicions, so I decided to try talking to a doctor who had made a report. This task was complicated because the doctors’ police reports are anonymous. In the end, I settled for interviews with two doctors: one whom I knew believed doctors should not report their patients, and the other whom I suspected of having reported a patient.

Interview with Dr. Rosario

Dr. Bernadette Rosario (pseudonym) was born into a medical family and raised in San Salvador. In her mid-forties, Rosario is a powerful woman who has served in the country’s Ministry of Health, as well as on the faculty of the country’s foremost medical school. Her office is in Colonia Médica, home to the country’s leading private medical practices. The neighborhood is only a mile or two from the public hospital where Beatriz waited out her ordeal. But whereas the entry to the public hospital was crowded with street vendors, ragged children, and dilapidated cars, Colonia Médica is tranquil. It consists of several tall buildings arrayed around a circular patch of grass. In the middle of the grass, a bronze statue of an enormous golden hand cradles a tiny baby in its palm.

“Can you tell me about doctor-patient confidentiality rights in El Salvador?” I asked at the start of our conversation.

I needn’t have worried about putting her on the defensive. Rosario looked me straight in the eye and answered, “Here, the right to confidentiality comes with a price tag. Patients at the private hospitals buy their privacy—no one ever reveals their secrets. You could lose your medical license and spend three to six years in prison for breaching patient confidentiality. And besides, they’re your patients—you know them, or their families, or their friends. Your reputation and your livelihood depend on them.”

“What percentage of Salvadorans go to private doctors and hospitals?” I asked.

“Three percent. Maybe five percent.” She smiled and shook her head when she saw the look on my face.

I found it hard to believe that all the elevator buildings in the Colonia Médica, the medical offices, and the small specialty hospitals served only three hundred thousand of the country’s six million residents. Rosario continued, “Eighty percent of Salvadorans get their care from public hospitals located throughout the country. The rest, mostly those who are retired or on pensions, get something in between.”

I’m not naive about the difference between the quality of health care received by rich and poor Americans. Generally speaking, we too live in a tiered health-care system. Still, I wondered how poor women lost their right to confidentiality simply because they couldn’t afford to see a private doctor.

“Why aren’t doctors in public hospitals worried about breaching patient confidentiality when they report women for abortion?” I asked.

Rosario answered, “Well, a lot of doctors think they’re obligated to report women they suspect of having done something to terminate their pregnancies; they do it because they think the law says they must. And then there are those who report because they really believe it’s a terrible crime to terminate a pregnancy and they want to see the law enforced. And, of course, doctors in public hospitals typically are young, hoping to build a reputation and then to start a private practice. They’ll do what they need to do to avoid conflict with their nurses or their superiors.”

“Do women know the public hospital doctors might report them?” I asked.

“It depends,” said Rosario. “Some of them are savvy enough to know exactly what sort of things separate the public from the private hospitals. But my guess is that most women don’t know. No one talks much about abortion or the law, and even if they knew, poor women seek care at public hospitals simply because they’re bleeding to death and they have no other option.”

Rosario had done little to conceal her opinion that patient confidentiality should preclude abortion reports to police. But then, she was allied with the opponents of the abortion law. I’d gotten her name from the activists working to overturn the ban. I wondered if health-care providers who supported the ban, who believed abortion was murder, nonetheless felt bound by patient confidentiality.

Banning Abortion Has an Impact on Women and Girls

When abortion is illegal, it is unsafe. In El Salvador, scores of women die every year from illegal abortions.  They aren’t the daughters of the elite, whose money helps them find safe, private ways to end their unwanted pregnancies. They are the women who live far from cities, in cinder-block homes with dirt floors and no running water. They are the women who continue to use coat hangers in the age of the Internet because they cannot afford to purchase abortion drugs online. In addition, banning abortion changes the lives of girls, who, because they cannot get an abortion, become mothers as teenagers. El Salvador has one of the highest rates of unwed teen motherhood in the world; a Pan American Health Organization report noted that one in four births in El Salvador is to women ages fifteen to nineteen.

In El Salvador, having a child at age fourteen isn’t simply a cause for shame in the eyes of a religious community. It also increases the odds of a life lived in crushing poverty, of marginal education and employment, of vulnerability to the violence and chaos that scores the lives of the poorest Salvadorans.

Some girls, faced with that prospect, opt to kill themselves. Government statistics reveal that three out of eight maternal deaths in El Salvador are the result of suicide among pregnant girls under nineteen. Many of these girls have suffered rape and sexual abuse, and are silenced by the shame of these humiliations, in addition to the stigma of pregnancy.

Across the globe, one finds similar trends. Where abortion is illegal, there are high rates of medical complications and deaths due to illegal abortion. There are high rates of teen pregnancies. Pregnant teens commit suicide.

For opponents of the abortion ban, each of these trends is a clear indictment of the law.

For the ban’s supporters, though, I imagine these indirect consequences on the lives of women and girls are viewed as part of a picture that includes other lives—those that begin at conception and that the law must therefore acknowledge and protect.

The Law Won’t Catch the Women It Targets

The most intense condemnation of abortion typically is reserved for women whose motives seem entirely selfish. The wealthy, married woman for whom a baby is inconvenient or the woman who has an abortion because she wants to be able to wear her bikini. The women whom Mayora, an outspoken supporter of El Salvador’s ban, decried as “wanting an abortion for any reason, or for no reason at all.”

What we learn from El Salvador is that the law can’t catch such women. Illegal abortion no longer has to involve “abortion doctors.” Ready access to abortion drugs and the fact that abortion is almost always indistinguishable from miscarriage mean most privileged women who have early abortions will escape detection, even when things go wrong and they wind up in the hospital.

What is true for El Salvador will be doubly true in wealthier countries, where women will have many more options for ending an unwanted pregnancy in a relatively safe, discrete way.

The Law Will Catch Innocent Women

The law will catch women who arouse their doctor’s suspicion. In El Salvador, the women accused of abortion are among the poorest women in the country. They seldom know the doctors they meet at the public hospitals where they get care. And in most cases, their doctors understand very little about them. Their doctors don’t know anyone who lives as these women do—with outhouses, dirt floors, no running water. These women are so poor and marginal that their doctors find it hard to understand their responses to crisis. Their world is so unfamiliar that it becomes possible for doctors, and later prosecutors and judges, to project their own fears onto it, inventing motives for crimes in the process.

To the woman in labor who fell down the steep path to the latrine, they impute the intention to conceal her delivery and kill her child. She must have wanted the child to suffocate in the muck so that she could avoid the burden of raising it on her own, with no husband and no money.

The lucky ones have lawyers who spend years undoing the errors that led to their convictions. But there is no way to undo the harm brought on by a state that took a woman in crisis, having arrived at a hospital hemorrhaging and in pain, having given birth alone, having lost a child, and treated her like a criminal.

It is tempting to say these cases will not arise in the United States. Surely, our defense lawyers would protect the rights of the wrongly accused, insisting that the state prove the woman’s guilt rather than being able to presume it.

But here, too, doctors can be suspicious of women who live on the margins of society, of those they meet only in the emergency rooms of public hospitals.  The consequences of making abortion a crime include a pattern we’ve already seen, in the context of prosecutions of women for ingesting illicit drugs during pregnancy. These prosecutions have disproportionately targeted poor, black women, many of whom were seeking prenatal care at public hospitals. Ban abortion and that pattern will intensify. The hospital will increasingly become the site of a crime scene investigation, and poor women will be the suspects.

Michelle Oberman

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. 

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