Fighting for Reproductive Justice in El Salvador

In 1967 the United Nations and its member states officially recognized women’s rights as international human rights. Despite this historic declaration many of those rights, specifically reproductive rights, are threatened today. As a region, Latin America has some of the world’s most restrictive anti-abortion laws. El Salvador, in particular, has extremely harsh reproductive laws. The country stands out for its aggressive abortion ban in all circumstances. Salvadoran Penal Code identifies miscarriage as a self-induced abortion, and therefore a prosecutable offense. From 2000 to 2011, 129 Salvadoran women were prosecuted for abortion-related crimes. Even in cases of rape, women will still be prosecuted. To address this social movements have formed in El Salvador to fight for female reproductive rights. This article will lay out the impact of the evolution of reproductive rights laws in El Salvador on women’s rights and highlight the role that women’s groups have had in addressing the problem. 

Under the 1973 Penal Code, induced abortion was officially recognized as a crime in El Salvador. This legislation defined abortion as “the destruction or annihilation of the conception at any moment during the pregnancy before birth begins.” The offense carries a sentence of one to three years in jail. However, this legislation specified that unintentional self-induced abortion or abortion performed to save the women’s life or in cases where the pregnancy was a result of rape were not punishable under the law.

Then came a shift in Salvador legislation, marked by radical Catholic influence that was heightened after the civil war. The Church specifically targeted what it deemed as the unjust termination of life. Under Armando Calderón Sol, the first president post-civil war, the Criminal Code was reformed to align with these values. The 1998 Criminal Code, which is still in place, criminalizes abortion in all cases. Compounding this legislation was the amendment to Article 1 of the Constitution to recognize human life from the moment of conception. However, because abortion was not defined under the Criminal Code nor the Constitution, there is a degree of legal uncertainty. As such abortion is classified as a serious crime and can be prosecuted as a homicide, which carries a prison sentence of up to 50 years. As of February 2022, at least 181 women had been prosecuted for illegal abortions since the total abortion ban was enacted. 

According to a study by the Guttmacher Institute and the International Family Planning Federation, about 25 per 1,000 women of childbearing age (aged 15-44) in El Salvador have had an unsafe abortion. In comparison, there are 44 per 1,000 abortions in Latin America and Caribbean (LAC) region each year, with about 76 percent taking place in unsafe conditions.

Two critical factors correlating to unsafe abortion rates in El Salvador are domestic violence and lack of sexual health education. Evidence suggests that young girls are the principal victims of sexual violence, often resulting in an unwanted pregnancy. PAI reports that in 2018 girls as young as 11 were forced to carry to term pregnancies that resulted from rape. “The girls and women who are most vulnerable due to their socioeconomic situation and their lack of access to educational and health services are those who suffer most from the effects of the criminalization of abortion”,  leading to the conclusion that the education system is also failing to provide relevant comprehensive sexual education. Of the 129 women prosecuted for abortion or homicide related to fetal death from 2000 to 2011, 46.3 percent were illiterate or at most finished two years of primary school. While the Ministry of Health provides accurate modern sexual and reproductive health education, it lacks the resources and staff to provide education to women living in rural areas without access to the education system. Even if a country has adequate education programs, not much can be done if there are unsafe conditions on the part of the health care provider. These conditions include a lack of birth control options, withholding information on different birth control methods, and conscientious objection by health care practitioners who refuse to perform medical activities incompatible with their ideology. As a result, only 66 percent of Salvadoran women of childbearing age use a form of modern contraception and over 35 percent use female sterilization. Inadequate sexual health education and family planning are directly correlated to the rate of abortion in El Salvador.

One of the more notorious cases relating to El Salvador’s abortion laws is Manuela v El Salvador. This landmark case ruled in November 2021 that the Salvadoran government was responsible for the death of Manuela, a young woman arrested in 2008 for homicide and sentenced to 30 years in prison for a miscarriage. She died two years later in prison from cancer and inadequate health treatment. The Inter-American Court of Human Rights (IACHR) also ruled that “health care staff can no longer refer women to law enforcement who come to the hospital seeking abortion care and other reproductive health services”. Because this case received international attention, the IACHR called on El Salvador to amend abortion legislation so that it aligns with international human rights standards, and carefully review convictions under the current legislation.

The current political situation in El Salvador does not provide an optimistic outlook for the plight of Salvadoran women dealing with unwanted or life-threatening pregnancies. Catholic and Evangelical groups are a strong force in impeding the work of groups in El Salvador. There is a strong Catholic presence in the country and in the government, making it difficult to fight for legislative change. Anti-abortion groups often coordinate protests against the liberalization of the country’s abortion ban. President Nayib Bukele aligns closely with the religious and family values of the Grand Alliance for National Unity Party (GANA). He has made decisive public statements ruling out any type of reform relating to the right to life. In 2019 the Bukele administration made deep funding cuts to several critical women’s social programs. Including the total elimination of Ciudad Mujer, a comprehensive care service that encouraged female economic autonomy.

In October 2021, the Salvadoran Congress struck down a proposal to allow minimal exceptions to the anti-abortion legislation. The proposed legislation would have allowed abortions in three instances: to save the life of the woman, when the pregnancy was the result of “sexual violence”, or in the event of fatal fetal deformity. Along with this proposal, various actions have been taken by grassroots organizations to protect women’s rights in El Salvador. The following organizations are leading the counter movement fighting for progressive reproductive rights: Agrupación Ciudadana por la Despenalización del Aborto, Colectiva Feminista para el Desarrollo Local, and Organización de Mujeres Salvadoreñas por la Paz. These organizations provide information regarding current legislation, reproductive health information, and legal assistance to the women of El Salvador. They work to promote awareness to change the existing legislation and ensure that women have access to reproductive health so that they do not resort to unsafe abortions. While they work with local governments the bulk of their efforts surround building networks within their communities. 

Agrupación Ciudadana por la Despenalización del Aborto (CGDA) was established in 2009 by Morena Herrera. Currently a human rights activist, Herrera is also a former commander and top military strategist from the civil war. CGDA is based in San Salvador and works to change existing legislation and provide legal defense to women who have been convicted or are being accused of abortion or related crimes. Herrera’s organization has successfully freed 61 of the close to 200 women prosecuted for abortion as a homicide since 2009. For example, they collaborated with IACHR in the 2021 Manuela v. El Salvador case. The organization also provides sexual health education to local and national communities. However, one of the complications impeding organizations like CGDA from providing sexual health education and working with hospitals to ensure that they are providing proper care is that women are discriminated against by hospital staff when suspected of having had an abortion.

Colectiva Feminista para el Desarrollo Local, founded in 2009 in Suchitoto, works with the community to advance the economic solidary of women, and provides training on comprehensive sexual health. The Colectiva also works with municipal governments to defend women’s rights and supports the building of shelters for female victims of domestic violence. They also published reports relating to the lack of a gendered approach to healthcare during the COVID-19 pandemic.

Organización de Mujeres Salvadoreñas por la Paz (ORMUSA) is one of the oldest non-partisan, feminist organizations based in El Salvador dedicated to women’s rights advocacy. It was established in 1983 through informal meetings of women from San Salvador, Olocuilta, and Candelaria. ORMUSA works to promote gender equality and the economic, social, and political empowerment of women through political action on the local and national levels. ORMUSA runs a legal aid center to provide legal assistance and psycho-social counseling to women and training on the prevention of gender-based violence. The organization helped bring to fruition the 2021 law that criminalized femicide, and it continues to track cases of femicide in El Salvador. The group also holds events and publishes reports concerning domestic violence, women in the labor market, LGBTQIA+ rights, and reproductive rights.

Next Steps:

Reproductive rights, or more broadly women’s rights, have long been promoted in the region, but in El Salvador, little progress has been made. Although grassroots movements are integral to counter restrictive abortion law, it is not only policy change that needs to happen, rather a broader transformation of women’s political representation. The women of Latin America are demanding that their governments follow the lead of legislators in Colombia and Argentina and protect women’s reproductive rights. In the case of El Salvador, anti-abortion legislation disadvantages a large portion of the population with inhumane results that can no longer be ignored. Reproductive rights are human rights and deserve to be protected as such.

Key Recommendations for Grassroots Organizations: 

• Push to have domestic violence recognized as a government issue, so women are more likely to speak up against sexual violence and fight for their rights. 
• Support women’s courts with female judges who have been specially trained in gender violence and law, and are likely to be more supportive of victims.
• Continue working with international organizations like IACHR and UNHCR to influence the Salvadoran court system to free more women prosecuted for abortions and to demand that El Salvador adhere to international human rights law 
• Continue to push for reform of the 1998 Salvadoran Criminal Code that criminalizes abortion in all cases.
• Lobby the United States and other international allies to provide financial assistance specifically for reproductive health services.
• Partner with schools to train teachers on a sex education curriculum.