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.

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