TABLE OF CONTENTS INTRODUCTION I. EL SALVADOR'S ABORTION BAN IN PRACTICE A. Abortion Rates and Abortion's Legal Status B. Access to Illegal Abortion in El Salvador C. Abortion Law Enforcement in El Salvador D. Abortion Ban's Impact on Patient Confidentiality Rights E. Doctors Role in Abortion Law Enforcement 1. Interview with Dra. Rosario 2. Interview with Dr. Diaz's II. FROM THE HOSPITAL TO THE COURT ROOM TO PRISON: A CASE STUDY A. Cristina's World B. What Cristina's Case Has to Do with Abortion C. Medical Emergencies, Abortion Laws and Probable Cause III. EL SALVADOR'S EXPERIENCE AND IMPLICATIONS FOR U.S. ADVOCATES OF ABORTION RESTRICTION A. Federalism and Access to Abortion B. Detection of Illegal Abortion C. Fear of Hospitals D. Catching the "Wrong" Women CONCLUSION INTRODUCTION
It has been forty years since the U.S. Supreme Court forbade states from restricting women's access to abortion during the early months of pregnancy, and if one thing is clear about abortion law today, it is that most Americans do not like the decision, (1) The reason for Roe v. Wade's unpopularity is obvious: most Americans reject the position that early abortion should be legal for all women, regardless of their circumstances. Polls consistently show that approximately three in four Americans would use criminal laws to restrict access to abortion. (2) Of those, twenty percent would make abortion illegal under any circumstances and the majority--fifty-two percent--believes abortion should be legal only under some circumstances. (3) Of that fifty-two percent, the great majority believes that abortion should be legal under only a few circumstances. (4) These numbers have not changed much over the past forty years, although recent years have seen an increase in persons identifying as pro-life. (5)
Obscured by contemporary pro-life/pro-choice discourse are the differences among those who identify as pro-life. For instance, sixty-nine percent of Americans who identify as pro-life favor legal abortion when pregnancy endangers a woman's life; fifty-nine percent would permit legal abortion in cases of rape or incest. (6) Likewise, there are distinctions among the twenty percent who believe abortion should always be illegal. For example, the American Association of Pro-Life Obstetricians and Gynecologists' official position permits the termination of non-viable pregnancies, such as ectopic pregnancies. (7) Others organizations, such as the Catholic Church and the Association of Pro-Life Physicians, assert that because it is impermissible to intentionally kill the embryo, the only morally justified response to ectopic pregnancy is to remove the fallopian tube in which the embryo is located. (8) Still other pro-life voices disagree with this position, disputing the actual threat to human life posed by such pregnancies, and asserting that humans should never intervene in the reproductive process. (9)
With the exception of those who believe humans should never be permitted to intervene in the reproductive process, those who identify as pro-life take for granted both the idea that limiting access to legal abortion will save fetal lives, (10) and the faith that the law will identify and permit access to the subset of cases in which they believe that the pregnant woman deserves to terminate her pregnancy. (11)
Perhaps because of the line-drawing inherent in the notion that abortion is mostly, but not always, wrong, the post-Roe U.S. struggle over the morality of abortion takes place in the legal setting. (12) Our disputes over abortion are not confined to philosophical or theological realms, but rather, have become central features in our political discourse, occupying the attention of candidates, lawmakers, and courts. As such, it is essential to consider the validity of these assumptions about the practical consequences--the efficacy--of abortion laws.
In seeking to explore the nexus between abortion laws and abortion in practice, one could turn to the rich body of pre-Roe abortion history in the United States Beginning in the nineteenth century, state laws sought to police abortion via the criminal law. (13) Numerous historical accounts conclude that, although the laws likely led at least some women to carry unwanted pregnancies to term, they had a far greater impact on the circumstances under which abortion was provided than they did on the frequency with which women terminated their pregnancies. (14)
However, a comprehensive review of our own history will not serve to inform a contemporary consideration of how and whether abortion laws shape abortion practices. Too many relevant factors have changed since the days when abortion was a crime in United States. Single motherhood is now commonplace; women and men enjoy access to numerous forms of effective contraception; and one may procure an abortion medically, by prescription drugs, as well as surgically.
A more relevant source of information to deepen our understanding of the impact of endeavors to restrict abortion via the criminal law may be found in countries around the world whose laws make abortion a crime. In looking to their experiences, we may observe the practical impact of the law on women's lives, noticing factors such as the mechanisms needed in order to successfully enforce laws against abortion and endeavoring to assess whether criminalizing abortion lowers the rate at which women terminate unwanted pregnancies. To be sure, it is hazardous to assume the experiences of a given country or culture will have any predictive bearing on our own. That said, it would be folly to assume that the United States has nothing to learn from the experiences of other countries that have outlawed abortion.
In an effort to understand how abortion laws work in practice, I chose to study abortion in El Salvador, which in 1998 changed its penal code from a law permitting legal abortions in cases of rape, incest, or threat to maternal health or life to a law banning abortions in all cases. (15) It was an extreme move, putting it in the company of only two other places in the world at that time--Chile and Vatican City. (16) Moreover, because it is a poor country, surrounded by countries with abortion laws that are only slightly less restrictive, women cannot readily avoid the law by traveling. (17) Thus, unlike middle-class women in Chile, who can travel to receive relatively safe, if illegal, abortions, (18) or the relatively few women in Vatican City, who could readily obtain abortions in Rome, (19) Salvadoran women live in a world in which safe abortion is truly inaccessible.
In addition, El Salvador endeavors to enforce its abortion laws. (20) Although it is hard to obtain data from recent years, government data from 2000-2003 indicates that between 50 and 100 women are prosecuted for abortion annually. (21) All of these factors--the relative poverty and geographic isolation of Salvadoran women from "abortion-friendly" regimes, and the aggressive prosecution of the crime, provide an optimal location for examining the extent to which an abortion ban actually affects the practice of abortion within a given country.
El Salvador is a poor Central American country, and it goes without saying that there are many ways in which life there is distinct from life in the United States--and some of those differences limit the lessons we might draw from its experience. (22) Nonetheless, even if societal distinctions portend different answers, much of what I learned in El Salvador points the way to questions that must be raised and answered, particularly by those in the majority of U.S. society who favor banning abortion under most circumstances.
Lessons from El Salvador are particularly relevant for those engaged in the U.S. debate over abortion laws because they reveal how little the law actually matters. El Salvador's experiences with its endeavor to ban abortion teaches us not only that the law fails to stop abortion, but also much about the price of such an endeavor.
My story begins with a consideration of abortion as it currently exists in El Salvador, including a discussion of why the ban fails to stop abortions and why the law catches so few who terminate their pregnancies illegally. In the second part, I deepen my exploration of how abortion laws operate by providing a detailed account of the prosecution, conviction, and resolution of Cristina Quintanilla for an abortion-related homicide. Finally, I identify and consider the extent to which the problems observed in El Salvador's experience with criminalized abortion have implications for U.S. endeavors to restrict legal abortion.
My central observation is perhaps as unsurprising as it is morally abhorrent: to the extent that a woman is rich, abortion laws do not matter. For women with money, abortion in El Salvador remains available and relatively safe, regardless of the law.
My additional findings are equally vital to our national conversation about how and whether to use abortion laws in order to affect abortion in practice. First, abortion does not disappear in countries that criminalize abortion; indeed, El Salvador has a higher abortion rate than does the United States (23) Second, abortion law enforcement is complicated and has consequences for a population extending well beyond pregnant women and fetuses.
Before disembarking, a word about my research and about my writing style is in order. This Article is a qualitative empirical endeavor, and I relate my findings in a style that is alternately narrative and analytical. In so doing, I aim to be true both to the voices I encountered throughout my travels and to my own. I have little use for the purportedly objective stance from which much of legal scholarship emanates, and feigned neutrality seems particularly ill-suited to the topic of abortion--a topic about which any informed American not only has an opinion, but also has a predisposition to distrust commentaries rendered by those...