Constitutional Court Says Beatriz Cannot Terminate Her Pregnancy

The Salvadoran Supreme Court handed down a 4 to 1 decision denying Beatriz’ request to terminate her 26-week fetus, which doctors say has a fatal anomaly and will not survive childbirth.

Over the past couple months, Beatriz has gained international attention because she has lupus, an autoimmune disease that has damaged her kidneys and resulted in other health problems. If forced to carry her pregnancy to term she faces any number of life-threatening complications including kidney failure or preeclampsia – pregnancy related hypertension.

El Salvador has an absolute ban on abortion that does not allow exceptions for the health of the mother or for rape or incest. In April Beatriz’s doctors and attorney appealed to the Salvadoran Constitutional Court, asking that her medical team be allowed to terminate her pregnancy without fear of prosecution and prison.

After weeks of contemplation, four of the Court’s five magistrates determined that if Beatriz and her doctors terminated the pregnancy they could be prosecuted under the abortion ban.

According to the BBC, Rodolfo Gonzalez, one of the four Magistrates who voted against allowing the termination, said he had not been convinced that Beatriz was at risk of dying if the pregnancy was allowed to continue. He also said that they could not turn the Constitutional Court into a “tribunal to allow the interruption of pregnancies.”

The Magistrates also said the rights of the mother cannot supersede those of the unborn child, and vice versa, that the rights of the fetus cannot supersede those of the mother. That logic, however, doesn’t seem to work in this case. Either way the court decided they would put the rights of the mother or the fetus over the rights of the other, and they decided that the fetus’ rights trump, even though it has no chance of survival.

The Court could have taken the opportunity to decide that El Salvador’s abortion ban is too extreme and that women should not have to carry pregnancies that are jeopardizing their health. In their appeal to the Constitutional Court Beatriz’s attorney was challenging the ban and asking for a broader decision that at least allowed for an exception when the mother’s life is at risk. A broader decision would have addressed Magistrate Gonzalez’s fear that the Court would turn into a tribunal for women seeking to terminate their pregnancies. But the Constitutional Court, which has showed some independence in recent years, does not appear ready to start protecting the rights of Salvadoran women.

Florentin Melendez, who was the only Magistrate to vote to allow Beatriz access to an abortion, said the court should have ruled in her favor to “guarantee that the medical personnel would not omit [any treatments] and would act diligently at all times, without having to recur to legal authorization to protect the life of the mother and the human being she is carrying in her womb.”

But this is already a serious problem in El Salvador. As reported by the New York Times Magazine in 2006, the absolute ban on abortion prevents doctors from, among other things, treating women with ectopic pregnancies – a condition in which the fertilized egg is implanted in the fallopian tube instead of the uterus – without risking imprisonment. That’s right… Salvadoran doctors cannot treat ectopic pregnancies, which have zero chance of survival and can be fatal for the woman, without being prosecuted for violating El Salvador’s abortion ban.

A Salvadoran women’s rights organization that has taken on Beatriz’s case indicated they are trying to help Beatriz travel to another country where she can safely and legally terminate her pregnancy.

But Beatriz’s case is not unique and that is not an answer for the thousands of other women in El Salvador that are or will be in her position. Women with ectopic pregnancies, preeclampsia, lupus or other illnesses regularly die alone at home or in an over-crowded maternity ward where they are being denied life-saving treatments because doctors fear prosecution.

And every year 13, 14, and 15 year old girls are raped by a family members or local boys and have to drop out of school because they are pregnant, all but guaranteeing they will spend their lives in poverty.

There is some discussion – not enough – about El Salvador’s extremely high femicide rate – the highest in the world. But repression and violence against women comes in too many forms, and El Salvador’s extreme abortion ban is just another way that Salvadoran society represses women.

As we have stated on this blog before, the hypocrisy behind El Salvador’s abortion ban is extreme and tragic. The wealthier classes that enacted and enforce the ban and stripped any meaningful sex-education from schools, have access to the full range of health services from their private doctors, including contraception and abortion. They can also afford to travel to the U.S. or other countries where they can safely and anonymously terminate their pregnancies.

For now, the Constitutional Court and much of Salvadoran society seems to be okay with that. But the conversation will surely continue because there will undoubtedly be more brave women to come forward.

Beatriz and Abortion in El Salvador

Doctors recommend that Beatriz, a 22-year-old Salvadoran woman with Lupus, terminate her 19-week pregnancy due to the associated risks of morbidity or mortality. Her doctors are worried that because Lupus has damaged her kidneys and caused other health issues, she is at high risk of preeclampsia, pregnancy related hypertension, and other life-threatening complications. Also, her fetus has a lethal anomaly that, aside from any of Beatriz’s health issues, will result in its eventual demise, either in utero or immediately after its delivery.

We first posted about Beatriz’s case last week when Amnesty International asked the international community to write to members of the Salvadoran government on her behalf.

In 1998, El Salvador completed a series of reforms, which included changing the constitution, resulting in an absolute ban against abortion. As reported by the New York Times Magazine in 2006, the ban is so restrictive that doctors cannot remove ectopic pregnancies (when a fertilized egg stays is implanted in the fallopian tube instead of the uterus), which have no chance of survival and put the mother’s health at risk.

After years of quiet activism a growing cadre of civil society organizations and human rights activists are speaking out against the absolute abortion ban and its extreme application. Over the past several years, activists have been defending women who have been accused of having an abortion, some of which have been convicted in a court of law and sentenced to 40 years in prison. Civil society, however, has really coalesced around Beatriz’s case, which is a potentially tragic example of the impact that the ban has on Salvadoran women.

This movement, which has become more vocal in recent weeks, is being met with fierce opposition from the Catholic Church and Fundación Sí a la Vida (Yes to Life Foundation), which represents some 50 pro-life organizations.

The Catholic Church and Yes to Life oppose allowing Beatriz to terminate her pregnancy, even if it means that she loses her own life. The Archbishop of San Salvador José Luis Escobar, said, “it is my understanding that the mother of the child is not in an intensive care situation… For me, it is the baby in utero that is in more danger because there is a movement to terminate its life. Only God knows how long this baby that they want to kill will live.”

Julia Regina de Cardenal, the President of the Foundation Yes to Life said “She [Beatriz] is stable, and able to speak, what we want is her physical and emotional wellbeing; we are trying to get close to her to help her. Carlos Mayora Escobar, also from Yes to Life, said “these people, why do they want to legalize abortion in this country? For political reasons, for ideological reasons, for reasons unknown. We always try to defend the rights of the women.”

As we posted last week, doctors at the National Maternity Hospital have filed an appeal with the Salvadoran Supreme Court, asking them to give the okay on terminating the pregnancy to save Beatriz’s life. The Court has yet to respond, but the magistrates asked the National Bioethics Commission of El Salvador (CNBES, in Spanish) for its opinion, which they provided this week. The CNBES advised the Court that Beatriz’s doctors should be allowed to immediately proceed with the potentially life-saving procedure.

The Citizens Association for the Decriminalization of Abortion, which advocates for legalization of abortion in El Salvador, supports Beatriz’s case. They are using it to demonstrate why they believe abortion should be safe and legal. On Thursday, April 25th, the group is presenting Beatriz’s case before the Inter-American Court for Human Rights, asking them to intervene.

Lic. Oscar Luna, the Ombudsman for the Defense of Human Rights in El Salvador, published a statement on April 16 also supporting Beatriz’s case as a human rights issue, stressing the mother’s right to life. He wrote in 2009, “the complete ban of abortion greatly increases the pain and suffering of women and girls, including those who seek medical attention for complications that require an abortion… because the penalty for abortion causes physical pain, fear, depression, and prison. In many occasions the suffering can lead to death or suicide.”

Luna says, “During my term [as Ombudsman], I have insisted that the human rights approach to health care ought to have an integral focus, taking into account the needs and requirements particular to women during all the different stages of life; and that in all forms, it is urgent to double up the efforts to decrease the causes of mortality and morbidity in El Salvador.” He concluded that the medical team should “use all means necessary to protect Beatriz’s right to life, health, and personal integrity.

In 2006, the New York Times Magazine published a long article on the abortion issue in El Salvador called the Pro-Life Nation. In addition to detailing the experiences of women who have had abortions in El Salvador, the article discusses the constitutional ban and abortion laws, and how the doctors/police/prosecutors enforce them.

In one sense, Beatriz’s case is extreme – it is a potentially life or death situation for her. But in many ways her case is not that different from other Salvadoran women who are socially and economically marginalized, lack knowledge of or access to contraception, and have little control over when and with whom that have sexual intercourse.

If you want to help Beatriz, please visit the Amnesty International website (click here).

Please Help to Save Beatriz’s Life – Sign on to the Amnesty International Letter

Amnesty International is asking people to sign on to a letter supporting Beatriz – a 22 year-old Salvadoran women who is 4 ½ months pregnant. Her doctors have diagnosed her with kidney disease and Lupis, and said the fetus doesn’t have a large part of its brain. Beatriz’s life is at risk if she does not terminate her pregnancy. The hospital treating Beatriz has asked the Ministry of Health for permission to provide Beatriz an abortion, but officials have ignored their request.

El Salvador has a constitutional ban against abortion, which has resulted in several serious issues for poor women throughout the country. There are too many cases in which doctors and police have accused Salvadoran women of trying to terminate their pregnancies when they were really having a miscarriage. There are many other cases in which women have died trying to terminate pregnancies that they didn’t want, either because they were raped or their impoverished situation made it impossible for them to care for another life.

To be clear – this is an issue that affects poor women. Salvadorans who need to terminate a pregnancy and have money can go to private doctors and have an abortion without the risk of being arrested. They also have access to information and contraception that is not readily available in public schools or health clinics.

Poor women who can’t pay for a private doctor and have to rely on state facilities do not have any options available to them, other than trying to terminate their pregnancy at home. On March 16, the Inter-American Court of Human Rights held a hearing on the impacts of the strict abortion laws in El Salvador.

Unfortunately, abortions are sometimes necessary to save the life of the mother, as it the case with Beatriz.

Please help Beatriz by sending the letter to the Ministry of Health – here is a link to the Amnesty Letter. The letter and instructions are in Spanish – if you fill out the fields under the email, Amnesty will send you an email with the letter and email addresses. All you have to do is reply to the letter (make sure to delete the instructions, leaving the letter in the body of the email). If the email addresses don’t automatically fill in, you can cut and past them.

Thank you!