Disputes and actors in the process of the abortion law reform

MARÍA ANGELICA PEÑAS DEFAGO

Londress

Encuentro; Transnational Law Summer Institute; 2016

Transnational Law Institute, King?s College London The Dickson Poon School of Law

El Salvador is one of the few countries in the world with an absolute ban on abortion. One effect of that legal restriction is strong police persecution and punishment of women who have abortions. Even women who have spontaneous abortions are prosecuted and imprisoned. In many of these cases, penalties are aggravated (more than 30 years in prison) because they are convicted for aggravated homicide (CRR, 2001; CRR, 2013). Most of these processes are initiated by medical staff in public health services that treat women with abortion-related complications. But in this Central American country the reality of abortion was not always like this. The Penal Code in place until 1997 foresaw a series of causes of abortions that would not be punishable, making exceptions for unintentional abortions, therapeutic abortions, abortions in cases of rape, and eugenic abortions. The socio-political process that determined the absolute ban of abortion in 1997 responded to a series of social and political occurrences in which the agendas of conservative Catholic and Evangelist sectors (national and international) and right-wing political parties prevailed. As Ernesto Feusier (2012) points out, the Penal Code reform draft bill presented in 1994 had the purpose of modernizing the country´s penal legislation, adapting it to the new Salvadoran reality after the signing of peace accords in Mexico in 1992. In this draft, substantially modifying the regulation of abortion was not foreseen. When the reform commission?s consensus to leave abortion regulation generally unchanged became known, an fierce resistance was created in the country, led by the Catholic Church Hierarchy and the self-proclaimed ?pro-life group? Sí a la Vida (Yes to Life), the representative of Vida Humana Internacional in El Salvador. Thus, the agenda concerning the abortion issue was drafted in El Salvador in the middle of the 1990s while the country?s democratic consolidation process was taking place. For years, this agenda framed the abortion policies in the country. The Penal Code reform of 1997 turned El Salvador into one of the five countries in the region with a total abortion ban. Five days after the new Penal Code was laid down, and on the very last day Congress was in session for the 1994-1997 period, the National Assembly approved the reform of Article 1 of the Constitution, which confirmed the protection of the right to life from conception. Such initiative was once again endorsed in 1999 and gave way to a kind of constitutional shield to the reform introduced into the Penal Code around that time, which brought about a complete criminalization of abortion (Feusier, 2012; Mata Tobar, 2013).These legal reforms were implemented thanks to, mainly, a coalition of conservative forces, such as the Catholic Church hierarchy, an NGO called Sí a la Vida which was related to the Church, and the conservative party, Alianza Republicana Nacionalista, ARENA (Nationalist Republican Alliance), which, by then, was in office and constituted the majority party in Congress. Against these actions were groups of feminists, many of whom had been guerrilla members. During the years of the armed conflict (1980-1992), many feminist organizations faced harsh persecution; thus, at the time of the reforms ? and because of these ? the feminist and women?s movements were weakened and were going through a reorganization process.When the Penal Code was reformed, the feminist movement was supported by Congressional representatives who belonged to the newly created party Frente Farabundo Martí para la Liberación Nacional, FMLN (Farabundo Martí Front for the Nation?s Liberation). The guerrilla was turned into a political party, the FMLN, a few months after the peace agreements had been reached. At the time of the Penal Code reform, through which abortion was banned in all cases, some FMLN representatives argued they would never vote in favor of such initiative, and therefore, the entire party voted against it. Despite this statement, however, while the constitutional reform process unfolded, the FMLN granted freedom of conscience to its representatives and some of these ended up voting for the constitutional reform, which consolidated the total ban on abortion.Thus, as the years went by and the FMLN gained strength as a political force, its position on the abortion issue changed: it went from a total support at the start of the movement to a tacit indifference, and even a total rejection in some cases, all of which took place against a background of fierce political battles in election times.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.Therefore, considering the multiplicity of actors and strategies involved in the disputes over abortion in this country, this work proposes a multidirectional analysis of the main actions that the sectors concerned with the disputes over abortion have been taking in El Salvador.At the methodological level, a revision of different legal documents has been conducted: sentences, lawsuits, stenographic versions of legislative sessions of the penal and constitutional reforms related to the object of study, and presentations to national and international human rights organisms. In addition, the analysis of material obtained through interviews, which were carried out in 2014 and 2015, with key actors involved in the legal mobilization processes regarding abortion in El Salvador has also been performed.