The cases are harrowing, and they keep accumulating. El Salvadoran women and girls who give birth to stillborn babies are originally charged with abortion, and then ultimately sentenced to decades in prison for “aggravated homicide.” To date, Jocelyn Viterna, a Weatherhead Center faculty associate and professor of sociology at Harvard, has collected 51 such cases. Most are destitute young women who live far from medical care — women who didn’t even know they were pregnant, many the victims of rape. Another 20 cases involve young women incarcerated and charged with “abortion.”
Viterna learned about the first cases in the mid-2000s when she was doing research for her book about female guerilla fighters, “Women in War: The Micro-processes of Mobilization in El Salvador,” and she said she couldn’t turn away. When she looked closely at the evidence presented in each case, it was clear that gender bias was rampant in the judicial process: women were accused of murder without any forensic evidence suggesting violence to the fetus; girls who didn’t even know they were pregnant were accused of attempted murder for accidentally birthing their babies in their home latrine. Why, she wondered, was there automatic presumption of guilt when there was no evidence of violence?
Consulting with doctors, psychologists, pathologists, and forensic examiners, Viterna educated herself about the science of abortion, miscarriages, and stillbirths. She then started submitting briefs to the court — including statements from medical professionals — about what was known in the medical literature. Could a young woman, in fact, not know that she was pregnant? As it turned out, yes, a traumatized woman can suffer from a dissociative disorder that psychologically disconnects her from her body. Can a woman first learn of her pregnancy by giving birth in the latrine? Again, the medical literature supports this. Could an umbilical cord break on its own from a fetus’s fall into a latrine? Yes, according to medical experts. All of this she aggregated and reported in a series of amicus curiae, or “friend of the court,” briefs.
“I’m not an activist. I do have my personal views, but I try strongly to keep them separated from these cases and really focus on the science and what we can know versus what is assumed based on implicit gender bias,” said Viterna. To date, she has submitted briefs for five cases.
With high rates of murder and domestic violence, El Salvador is already known as one of the most dangerous Latin American countries for women. But its severe anti-abortion laws have become a point of national pride — a defining identity for this Catholic majority country about the size of Massachusetts. While abortion has long been illegal in El Salvador, and throughout Latin America, in the past the laws were almost never enforced, and certainly not to point of incarceration. This all changed in El Salvador in 1997 with the establishment of new laws that repealed all existing exceptions to abortion — those for rape, threat to the mother’s health, and fetal deformities incompatible with life.