In El Salvador, a victory for women who were jailed under the country’s draconian anti-abortion laws

El Salvador has an internationally-known reputation for torturing women from impoverished backgrounds. In November 2021, the Inter-American Court of Human Rights made this clear with the case of Manuela, one of 74 women who were given 30-year-long prison sentences by the Salvadoran justice system after suffering obstetric emergencies.

Manuela died in 2011 from cancer, well before clemency was a viable option for unjustly-imprisoned women like her. When she lost her baby, she had not yet been diagnosed with an illness that — it was later learned — had affected her pregnancy. It took 10 years for her innocence to be restored in an international court, but that recognition paved the way to ending the nightmare for the others. In December 2023, El Salvador released Lilian, the last woman convicted for an out-of-hospital birth.

Lilian’s release ends a cycle in the lives of these women, about whom we knew little or nothing until April 2014. This was when a social movement — Una flor por las 17 (”A flower for the 17″) — was launched. The campaign reported on the conditions that these women were living in during their pregnancies and while giving birth. They lived in conditions of poverty and — for the most part — hadn’t finished their basic education. Their income came from informal commerce or care work.

The story was almost always the same: contractions (which were confused with stomach pain) led them to a bathroom — almost always one with a septic tank — where they gave birth to their babies without any help or medical attention. When help finally arrived, instead of being seen as women and girls who needed assistance, they were labeled as suspects, handcuffed to a stretcher and accused by the Attorney General’s Office of being “bad mothers.” Ignoring the pain they had gone through, the authorities would claim that the victims had failed in their duty to protect the lives of their newborns.

All of them were subjected to misogynistic laws that were passed between 1999 and 2019, the decade in which El Salvador became the country with the most restrictive stance against abortion. In 1998, the reform of the Penal Code came into force in El Salvador, eliminating three grounds under which abortion was permitted (rape, incest, or health of the mother). And, in 1999, the Constitution was reformed to incorporate the recognition of life from the moment of conception.

Despite the fact that all of the imprisoned women had experienced premature or full-term births (many of which ended in miscarriages or spontaneous abortions), the judicial authorities initially accused them of abortion. According to the prosecutors and judges, the mothers had consciously attempted against the lives of their own children.

The impact of the reform was such that it filled El Salvador’s Union of Medical Workers with fear. In the public hospitals where these women were treated, memorandums arrived from the government, which notified doctors and surgeons that anyone involved in an abortion would lose their license to practice.

The story of the 17 — the initial number of pardons that the campaign requested — was told around the world, with the intention of putting pressure on the authorities to review the circumstances under which these women were unjustly imprisoned. The echo was greater beyond El Salvador: foreign correspondents began to enter the country to cover the stories of these women and amplify what was clearly an injustice.

At home, however, the campaign was largely met with societal indifference. Meanwhile, elites with political and economic power reacted violently, being the same individuals who had pushed the reforms of 1998 and 1999. The then-director of the Institute of Legal Medicine, José Miguel Fortín Magaña, was in charge of attacking those who spoke up for the women, claiming that he could prove that the newborns had been murdered.

Fortín Magaña is a member of Opus Dei — a viscerally anti-abortion institute of the Catholic Church — and his wife was part of the board of directors of the Yes to Life Foundation. This is one of the organizations that, for years, led a movement against the liberation of the 17 imprisoned women. The group even set up a website where it attached photos of them, so as to reveal their identities.

Fear wasn’t only rampant among doctors. Since abortion — and everything similar to it — is taboo in El Salvador, few lawyers or human rights organizations wanted to litigate these cases. Morena Herrera — one of the leaders of the feminist movement in El Salvador and president of the Citizen’s Group for the Decriminalization of Abortion — tells EL PAÍS that in 2013, when they were compiling the cases, she recalls how they went “from lawyer to lawyer, from office to office.” Everyone told them “no,” arguing that the cases were sure to be lost, given the national legislation and constitutional reform. It wasn’t until a court finally admitted the first review of the sentences in 2014 that various important allies — such as the Human Rights Institute of the Central American University (UCA) and the Foundation for Studies for the Application of Law (FESPAD) — decided to join to the campaign as part of the legal defense.

International organizations also joined the campaign and were key in applying pressure. But the success of finally freeing the 73 women is clearly the result of the tireless work of the Salvadoran feminist movements. They would mobilize and take over the streets outside the courts each time a hearing was held. Eventually, they took Manuela’s case to the Inter-American Court of Human Rights.

Of the 73 women released, only one was granted pardon, while 10 were acquitted. This was despite the fact that all of them — without exception — were recognized as having been tried without procedural guarantees and with insufficient evidence. Despite the fact that they had the right to their freedom, the vast majority were not declared innocent. Meanwhile, those who were released by order of a judge faced threats.

For María Teresa, for instance, the judge who reviewed her case acquitted her in 2016. But instead of being able to rebuild her life with her son and family, she had to flee the country. The Attorney General’s Office announced that an appeal was going to be filed, to have her conviction reinstated. After having sought asylum, she now lives in Switzerland.

Teodora — one of the best-known faces of this campaign — was denied her innocence on two occasions. After almost 11 years in prison, she managed to get out “for good behavior.” Her sentence was commuted. On the day of her release, the official in charge of her case said that, thanks to the time she had been in prison (unjustly), she had managed to complete high school… as if the state had done her a favor. In 2022, a documentary about the judicial process she went through was censored in El Salvador’s movie theaters. The authorities claimed that it was an “apologist” film, making excuses for criminality.

Not in all cases, but over time, the arguments utilized to convict the women began to fall apart, as some judges saw beyond the taboo. Imelda — a 19-year-old girl who had been repeatedly raped by her stepfather and whose baby survived the obstetric emergency — had to admit that she was guilty of having abandoned her newborn daughter, in the hopes of being given a lighter sentence. In December 2018, after 20 months in jail, the judge ultimately didn’t accept her guilt and instead declared her innocent, noting that it was impossible for Imelda to understand that she was committing a crime.

25 years after the reform, the laws remain unchanged in El Salvador. Still, protests haven’t been in vain. 73 women have regained their freedom, protocols have been created to care for obstetric emergencies and guarantee medical secrecy, while the judges who preside over these cases now have a ruling from the Inter-American Court that sets a precedent to avoid unjust convictions.

Nothing is perfect, of course. There are still 11 women facing criminal proceedings for similar cases in the country. The state continues to refuse to take responsibility or offer reparations to the unjustly-imprisoned women and their families. But the path has been paved, and these women, whose voices were once silenced by the judiciary, are now fighting to make sure that these state crimes never happen again.

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