Cristina's World: Lessons from El Salvador's Ban on Abortion

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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. …