Abortion debates in El Salvador. Two decades of legal disputes

MARÍA ANGELICA PEÑAS DEFAGO,

Bergen

Conferencia; Bergen Exchanges on Law & Social Transformation; 2015

CMI,Bergen University

In 1997 the Salvadorean Penal Code was reformed to specify a total ban on abortion on the grounds of the defense of the absolute character of life since conception. Shortly afterwards the national Constitution was modified to include protection for life since conception, an amendment which reinforced the country?s new criminalizing model. The approval of these reforms meant that different legal, moral, biological and religious discourses began to circulate.A decade later, the Constitutional Chamber of the Supreme Court of Justice became one of the arenas chosen by diverse social actors to dispute the legality of the total criminalization system on the basis of defense of women?s rights to life, health, dignity and integrity. All the constitutional challenges presented aimed at overturning total criminalization have been rejected by the Court. Through different discursive turns the Court has determined that the right to life since conception -established as part of the Constitution in 1999 ? trumps women?s rights. Despite not having declared total criminalization unconstitutional in any of the cases presented, the Court has determined that a system like El Salvador?s could eventually lead to a conflict of interests between the ?mother? and the nasciturs, conflicts which it deems should be resolved by representative bodies of state and not by the courts. Considering this scenario, the present work puts forth an analytic distinction of two moments which determine the development of the debate over abortion in El Salvador in the last twenty years: a first moment identified with the Penal Code and National Constitution reforms in the 1990s, and a second moment, during the first decade of the 21st century, when there emerges an articulated resistance to total abortion criminalization. Both periods involve two empirically differentiated ways of understanding how debates about abortion in El Salvador have been configured. In addition, this approach allows us to get closer to the specific strategies in the legal/political field, such as identifying alterations in the alliances and in the correlation of forces among the main actors involved in the disputes over abortion in El Salvador.