The voice that conveyed the information to Morena Herrera, from El Salvador, was foreign. “There are women who have been imprisoned for abortion,” the voice said, “and they’ll stay there for 30 years or more.” Herrera could not believe what she was hearing; under the criminal code, abortion carried a maximum sentence of eight years. Why such long prison terms? Morena Herrera asked the speaker, Donna Ferrato, how she knew about these women. Ferrato had just finished a photo essay for The New York Times on the criminalization of abortion in El Salvador, and she had heard the story from the imprisoned women themselves. One of them was Karina Herrera. The coincidence of sharing the same last name helped Morena embark on a journey to identify these women and take the fight for their freedom to national and international courts.
It was 2006. There were no organizations working to change abortion laws then; the issue was too risky in the years following the armed conflict that devastated the country. Abortion was fully criminalized in El Salvador in 1997, after the penal code had been harshly revised. Even today, the criminalization of abortion remains absolute; the procedure cannot even be performed to save a woman’s life or if a young girl has been raped. Morena Herrera decided to investigate what Donna Ferrato had told her. She knocked on the prison gate and introduced herself as Karina Herrera’s aunt. Their common surname facilitated this initial meeting. One of the most important feminist resistance efforts in the Americas began there: woman to woman, Herrera to Herrera.
Transforming ‘abortion’ into ‘aggravated homicide’ increases the stigma of abortion while also lengthening the prison sentences for these women
After three years of investigations and legal battles, Karina was released. It was through her that Morena came to understand one of the patriarchy’s most perverse stratagems in Latin America: the criminalization of obstetric emergencies, including miscarriage, unsafe abortion and unattended, out-of-hospital births. Identifying these criminalized women was tricky because, through a legal ploy, they had been charged not with “abortion” but with “aggravated homicide” against a victim aged zero or a newborn. Framing the crime as “aggravated homicide” versus “abortion” is not some dispute regarding the interpretation of the penal code, but an indication of how the patriarchy uses criminal policy to cruelly interfere with women’s bodies. Transforming one type of crime into a more serious one has two purposes: it increases the stigma of abortion, legally categorizing the practice as a type of homicide, while also greatly lengthening the prison sentences for these women.
The women were identified by their fellow prisoners. Morena knew it was important to locate them, but wanted to make it a collective endeavor. Working with other men and women, and with the support of feminist organizations in Nicaragua, they founded the Agrupación Ciudadana por la Despenalización del Aborto (Citizen’s Group for the Decriminalization of Abortion). Between 2000 and 2019, an estimated 181 women were unjustly charged with abortion or obstetric emergencies followed by fetal death in El Salvador, three of them girls between the ages of 10 and 14. Of these, at least 66 had spent months or years in jail; as of 2020, 41 had regained their freedom. The latter cases included Cindy Erazo, who spent six years in prison for suffering a stillbirth; Alba Lorena Rodríguez, imprisoned for 10 years following complications during the delivery of a baby conceived by gang rape; Évelyn Hernández, locked up for three years after she also became pregnant as the result of rape and had a stillbirth. Another was María Teresa Rivera, sentenced to 40 years in prison for having a miscarriage; she had spent four years in prison and was afraid she would be sent back, since the courts kept pursuing the case. Legally, she is a political refugee of the patriarchy, who has been living with her son in Sweden since 2016.
Six countries in Latin America and the Caribbean criminalize abortion in all instances. There are others, like Brazil, whose political leaders have signaled they agree with the El Salvadorean model – for example, Brazil’s Minister of Women, Family and Human Rights Damares Alves, who at the last meeting of the UN Human Rights Council, in February 2021, declared that “human life begins at conception.” We live in the region of the world that persecutes the greatest number of women with criminal laws and where more abortions are performed. Why such insistence on persecuting, intimidating, arresting and killing women for having an abortion? Because patriarchal power regimes modulate the social reproduction of life by controlling biological reproduction, that is, by overseeing women’s bodies. There is no way to separate the abortion issue from gender equality policies, because it is by criminalizing reproductive rights that the life plans of young women are controlled.
Perhaps no woman has suffered the effects of this anti-abortion zealotry more than “Manuela,” a pseudonym. Her case reached the Inter-American Court of Human Rights at the request of the Center for Reproductive Rights, the Colectiva Feminista para el Desarrollo Local (Feminist Collective for Local Development), and the Agrupación Ciudadana por la Despenalización del Aborto; public hearings have been set for March 10-11, 2021. The use of a fictitious name is meant to protect this poor, young illiterate rural worker and mother of two small children from any further brutal torture. Manuela was unaware of her pregnancy, she was more worried about the nodules on her neck, which were accompanied by weakness and fever – all symptoms of an advanced but undiagnosed case of cancer. When she was about 32 weeks pregnant, the young woman suddenly fell ill, hemorrhaging and fainting. After she miscarried, her family and neighbors tried desperately to save her. She was too debilitated to walk from her home to the road where she could get a ride to the nearest hospital, so she had to be carried there in a hammock. This was her final departure from her home and the last time she would see her parents and children outside of prison, where she was only allowed a single visit during her incarceration.
Manuela lived on land farmed by her family. The father of her first two children had abandoned them and joined the thousands of Salvadorans who have fled to the United States – whether legally or not, this was just one more chapter in the family’s story of abandonment. We do not know if the pregnancy that led to her arrest was the result of a consensual act or a violent one; this information was of little concern to the criminal court that sentenced her for “aggravated homicide.” The judge felt free to create his own narrative of the facts: Manuela was an unfaithful wife, lacking “maternal instinct,” who killed her child in an act “contrary to nature itself.” As soon as Manuela had been admitted to the hospital, a female doctor had reported her and the police had been sent to search the shack where she lived. There, they opened the latrine pit and forced Manuela’s illiterate father to register the fetus with a first and last name (the family’s). The victim was no longer Manuela; instead, the patriarchy assigned itself the role by representing an unborn creature, named so it could be publicly cast as an innocent.
There is no way to separate the abortion issue from gender equality policies, because it is by criminalizing reproductive rights that the life plans of young women are controlled
Denying Manuela the right to a defense and never taking her body’s truth into account, the court quickly handed down its decision, sentencing her to 30 years. Forced to sleep on her cell floor, she was persecuted in prison and suffered from her painful cancer. She received hardly any visitors and died two years after the obstetric emergency that had prompted her miscarriage. Hers was a sick and suffering body, but one ignored by the fury of the police, courts and medical establishment. Her biography became a fictional construct of the patriarchy; she was painted as a fickle woman unfaithful to her husband, a husband no longer in her life. The family tried to challenge the courts in El Salvador so the story of her death would reflect the true story lived by her body: that she had died of a cancer that had been inadequately treated in prison and not because she was a criminal; she had been arrested for a nonexistent crime. The family was even denied the right to truth in court records, which is why the case has gone to the Inter-American Court of Human Rights.
The current climate of anti-abortion zealotry fosters brutal regimes that persecute and torture women. Manuela died because abortion has been totally criminalized and because the State apparatus was used to persecute her, with touches of cruelty. It did not matter that the truth of her lived experience involved too much misery for one body to endure: poverty, loneliness, a body stricken by cancer. Now, the judges with the Inter-American Court of Human Rights must draw inspiration from the two courageous Herreras who began this journey and ensure that their legal decision crosses the borders of El Salvador to protect other women, eternalizing Manuela by setting a legal precedent with her case. Manuela is dead and the court must redress its error, restoring her dignity by restoring the truth of her lived experience.
Debora Diniz is a Brazilian anthropologist and researcher at Brown University.
Giselle Carino is an Argentinian political scientist and IPPF/WHR director.