Special Report: Feminist Groups and FMLN Introduce Reforms to Decriminalize Abortion

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FMLN legislator Lorena Peña, accompanied by reproductive rights activists, speaks to the press after introducing reforms to El Salvador's abortion ban. (Photo: Diario La Pagina)

In a historic step towards recognizing women’s human rights and bodily autonomy, Salvadoran feminist organizations and legislators of the governing Farabundo Martí National Liberation Front (FMLN) teamed up to present a reform to El Salvador’s Penal Code that aims to reverse the total ban on abortion that exists in the country. If approved, the proposed reform would legalize abortions in cases of rape, incest, an unviable fetus, and when the mother’s life is at risk.

This would return the country to the legal framework that existed prior to 1997, when the right-wing-controlled legislature, under pressure from fundamentalist groups, voted to ban abortion under any circumstances. El Salvador is one of six countries in the entire world with an absolute ban on abortion. The following year the legislature went on to reform the Constitution to recognize human life as beginning at conception, creating the legal framework to accuse women and abortion providers of aggravated murder. Powerful, conservative sectors in the country have historically dominated the public debate on abortion, and their influence is reflected in public opinion polls. For decades, even many leftist and progressive politicians have considered defending women’s reproductive rights a political suicide, though influential feminists within the FMLN party have continued to push the issue both within the party and from their positions in government.

In recent years the Salvadoran feminist movement has increased organizing and mobilizing to challenge the country’s draconian abortion ban. The visible, international campaign “Liberty for the 17” has fought for pardons for women unjustly imprisoned for abortion or aggravated murder in the aftermath of miscarriages or obstetric emergencies. The campaign has successfully secured the freedom of three women. Additionally, public education campaigns carried out by feminist groups with the support of international NGOs seem to be having an impact on public opinion. While the Central American University’s most recent poll on the issue still showed less than 6% of the population supports permitting abortions for girls and teenagers who feel unprepared for motherhood or for adult women who feel unable to support a child, it found 57.4% support for permitting abortions when the mother’s life is in danger, 51% support when the fetus is unviable, and 22.7% support in cases of pregnancies resulting from rape. As a response to the feminist movement’s growing success, in July of 2016 right wing legislators from the Nationalist Republican Alliance (ARENA) party introduced a bill to increase the abortion penalty to 50 years in prison.

The right-wing backlash pushed the feminist movement to seek out political alliances in the Legislative Assembly to take advantage of mounting support for their cause and pro-actively go after the inhumane ban; they found a natural ally in staunch feminist and FMLN legislator Lorena Peña, who was finalizing her term as president of the Legislative Assembly. On Tuesday October 11, Peña introduced legislation drafted in coordination with the Alliance for the Life and Health of Women and the Citizens Group for the Decriminalization of Abortion to reform Article 133 of the Penal Code to decriminalize abortion in cases of rape, incest, an unviable fetus, and when the mother’s life is at risk. The entire group of 31 FMLN legislators in the Legislative Assembly have committed their support for the proposed reform.

Feminists are hopeful the reform will end the persecution of women who have experienced miscarriages and stillbirths. Valentina Ballesta, a lawyer at the Center for Justice and International Law (CEJIL), explained that “many women that have medical emergencies or births outside of hospitals are accused by their own doctors, by health personnel, and processed for aggravated homicide.” Advocates point out that, in these cases, classist and misogynist attitudes often violate the women’s right to a presumption of innocence, a right protected in the Salvadoran constitution.

The proposed reform would also provide life-saving options to the large numbers of girls and young women who become pregnant in El Salvador. According to a report by El Salvador’s Ministry of Health and the United Nations Population Fund, over 13,000 minor girls became pregnant in 2015; 1,400 of whom were between the ages of 10 and 14. The study also found that these girls are often impregnated through rape and other forms of sexual violence by older men, in many cases a relative or family friend. According to Salvadoran law, all sexual activity with a child under the age of 15 constitutes a punishable, criminal offense. Once pregnant, 80% of these girls lose educational opportunities, end up carrying out domestic duties, and have more children with those who impregnated them. In response to this data, the Minister of Health Violeta Menjívar made an emphatic call to the Attorney General to prosecute the sexual predators responsible for these pregnancies and lamented, “It’s unfathomable that only [women and girls] are persecuted for interrupting a pregnancy and not the men who impregnated them…if we do not begin to deal with the concept of justice, as much as we may want [to reduce these pregnancies], we will not advance.”

In order to get the reform approved in the Legislative Assembly, massive pressure will be needed to convince twelve additional legislators to join the 31 FMLN legislators and vote in favor. This will be an uphill battle, as ARENA and the Christian Democrat Party (PDC) have publicly stated that they will vote against the reform. The other two parties with representation in the Assembly, the Grand Alliance for National Unity (GANA) party that has eleven seats and the National Conciliation Party (PCN) that has six seats, have yet to express party-wide positions, but neither have a history of championing women’s rights. Frustratingly, the recently-named Human Rights Ombudswoman Raquel Caballero de Guevara, who was nominated for the position by ARENA legislators, has come out against the proposed reform and preemptively against any other proposals to decriminalize abortion.

Sara García of the Citizen’s Group for the Decriminalization of Abortion told CISPES that reproductive rights groups have “great expectations for the process.” According to García, an initial objective of the movement going forward is ensuring that for the first time ever “a serious and scientific debate be held in the Legislative Assembly” about abortion and the inhumane consequences of its criminalization. “We hope that following the debate that the Legislative Assembly carries out along with the media and civil society, that [the proposed reform] be approved,” added Garcia.

El Salvador’s total ban on abortion is a form of institutionalized misogyny and represents State-sponsored reproductive punishment that disproportionately affects poor and working-class women, women with disabilities and chronic illnesses, and those with limited formal education. Sara García told CISPES that the passage of the proposed reform would “be an indicator that El Salvador is constructing public policies through democratic processes…it would constitute a concrete action for consolidating a more just and equitable society.” She went on to say that, “it will be the product of years of work on behalf of social and feminist organizations, who have fought so that this subject not be silenced and forgotten.”

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