Abortion in El Salvador: How to Break People Out of Prison

When Salvadoran women are imprisoned for abortion this activist group fights to free them

By Metzi Rosales Martel

Translated by Elizabeth Navarro

Photographs By Kellys Portillo

Two women with scarves wrapped around their face and neck against a black background

Lux Issue 8 explores international approaches to abortion access. Read more dispatches from Croatia, U.S. prisons, Palestine, and New York City.

Abortion in El Salvador is strictly illegal, and the country has imposed decades-long sentences on women who abort or even miscarry or suffer other obstetric emergencies. As a result, a major focus of Salvadoran feminist organizing has often had to be getting women out of jail. 

Alejandra Burgos has been doing this work for the past ten years with the Agrupación Ciudadana por la Despenalización del Aborto (the Citizens Group for the Decriminalization of Abortion). She spoke with Salvadoran journalist Metzi Rosales Martel this summer; as of this interview, her group has helped 72 women gain their freedom and has 22 cases in progress.

As zealous U.S. prosecutors enforce new abortion bans in wildly unpredictable ways — Lizelle Herrera arrested on murder charges in Texas 2022; an 18-year-old in Nebraska jailed in July after self-managing an abortion — this sort of mobilization will become key in the States, too. For more than a decade, the Agrupación Ciudadana has provided support to incarcerated women and their families — which continues after they are released — and they have tested new legal strategies to get women free. But they soon learned that the legal route alone wasn’t sufficient. They began to launch public campaigns and strategic lobbying efforts to draw attention to the horrific effects of criminalization among legislators and the public. In 2014 they launched “Las 17,” highlighting the cases of 17 women who were convicted of homicide under the abortion ban. Other individual cases have become almost household names, names with the power to bring El Salvador’s unjust system to justice: Manuela, a ruling in the Inter-American Court of Human Rights in 2021 that held El Salvador responsible for the death of a woman imprisoned for pregnancy loss, and Beatriz, which the court heard this March, marking the first time that the court has recognized a case against a state for the total criminalization of abortion when the health or life of the pregnant person is at risk or in cases of fatal fetal diagnosis. If the court rules against the state, it could mean the end of total abortion bans not just in El Salvador but also in Nicaragua, the Dominican Republic, Haiti, and Honduras.

For Burgos, the work doesn’t stop with a ruling. El Salvador has yet to comply with the terms of the decision in Manuela’s case, and below, Burgos describes a public memorial and monument to Manuela in the town where she lived and died — “an act of symbolic and restorative justice,” and a chance “for the community to recognize that Manuela was not guilty, that she was a victim at the hands of the state.”

This article was a collaboration with the Salvadoran feminist publication Alharaca. A Spanish-language version of the interview is available on their website. —Lux 

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Metzi Rosales Martel What were the laws on reproductive access like in El Salvador before the total ban on abortion in 1998?

Alejandra Burgos Between 1974 and 1998 El Salvador had one of the most progressive legislations in Latin America, allowing for abortion on ethical, eugenic, and therapeutic grounds. El Salvador did not just reform its penal code to ban abortion in its entirety; in 1999 it also changed the constitution to recognize human life at conception. This is not a scientific or legal categorization, it is a religious and philosophical one. To speak of conception is to speak of Catholic dogma of the immaculate conception.

When you speak of life that begins at conception, the value of nasciturus [a Latin term for an unborn child used in some criminal codes] is placed above that of the pregnant person. The result is that when an obstetric complication is criminalized, it is not categorized as an abortion. Although a pregnant person is brought before the law presumably for carrying out an abortion, they’re actually processed and charged for homicide or attempted murder, because the nasciturus is recognized as a human being.

MRM What consequences have women faced since the implementation of the total ban?

a woman raising her fist, standing against a banner and behind it, a procession of people protesting.
On March 8, 2023, feminists marched in San Salvador for International Women’s Day

AB More than 200 women have been criminalized. We’re talking about a particular profile: women living in poverty, low rates of schooling, little access to resources or educational development programs and sexual health information. This is happening in a country where basic sex ed exists only as a myth. 

The state, absent up until this point from their lives, becomes their executioner: It prosecutes them for not complying with the role of self-sacrificing mother. There are women who have out-of-hospital deliveries without any access to medical care. They confuse the pain of labor with the need to go to the bathroom, which in these cases [without indoor plumbing] could be a septic tank, the yard of their house, or a sidewalk. They suffer fetal abruptions [a dangerous complication]. The judicial analysis carried out in these cases is based on how a judge understands motherhood and maternal instinct. The manner of analyzing these cases has given primacy to gender stereotypes with no regard for social, economic, or cultural conditions. 

MRM How does incarceration for Salvadoran women that have been charged for out-of-hospital deliveries and/or obstetric emergencies compare with incarceration for women accused of other unrelated crimes?

AB One of the things that we hear most often from women who have been denied their freedom as a result of the total criminalization of abortion is that the stereotype of the self-sacrificing mother or victim operates within the carceral system just as it does in the health care or justice system. Nobody asks a woman who has faced an obstetric emergency, “What happened to you?” Instead, she is judged and accused. That’s the experience of the majority of women. In recent years this has changed a bit since the founding of the Agrupación Ciudadana and media reporting on the state of abortion in El Salvador. The case of Beatriz in 2013 caused a fissure in the social fabric. People began to talk about what was going on in El Salvador and began to understand that this could happen to anybody. [In 2013, a woman known as Beatriz requested an abortion at 13 weeks, because the fetus she was carrying had anencephaly and was certain not to survive, and she herself suffered from serious health risks. A Salvadoran court denied her request, and the baby died after an emergency cesarean section. Beatriz herself died in 2017.]

MRM When did the Agrupación Ciudadana begin their work?

This is not limited to a couple of cases. This is about a systemic reality, a pattern of injustice.

AB The Agrupación Ciudadana was founded in 2009, but we began this work as far back as 2006 when Karina Climaco’s case was featured in the New York Times. It was the first time that it had been publicly stated, “A women in El Salvador is sentenced to 30 years for having an abortion.” This caused an uproar from within the feminist movement because the criminal code in El Salvador prosecutes induced abortion with two to eight years of jail time. At the time, the question arose, if that’s the case, why was this woman who had an abortion condemned to 30 years?

One of the first problems we faced in this case was the realization that she had been charged with homicide. This was dismaying because it represented a change in the categorization of the crime that we had yet to understand. It was very difficult to find a defense attorney to represent Karina because it appeared that her case was a lost cause, with a damning sentence already in place and nothing more to do. 

That’s when we sought new and distinct legal strategies. A review of her sentencing was requested. We had to reconstruct Karina’s case from the ground up: present new evidence, medical and forensic expertise, and social and psychological analysis. The work of the Agrupación Ciudadana has meant building our case piece by piece each time.

MRM Aside from free legal representation, what other support does the Agrupación Ciudadana offer to women while they are behind bars?

AB Many families don’t have the resources to buy necessary toiletry kits or other materials they may need. While we cannot make direct donations to the incarcerated women because we’re not family members, we do cover this need for them and for other incarcerated women. 

MRM And once they’ve been freed, what type of services do you provide?

AB Many of the women leave impoverished children on the outside when they’re convicted. Often they were the sole providers for their household. The children are left orphaned or in the care of grandparents or an aunt. So we maintain direct communication with the family. Often, we’re unable to cover the educational or health needs of the family ourselves so we connect them with local organizations who can. Before El Salvador’s State of Exception in 2022, we also provided transportation to family members for jail visits to their loved ones. [El Salvador’s increasingly autocratic president, Nayib Bukele, has maintained a state of emergency, suspending many civil liberties, as part of his crackdown on gangs, leading to mass arrests and overcrowding in prisons.]

Several of the services we provide once women have regained their freedom are intended to support them as they rebuild their lives and their familial ties. Some organizations provide scholarships, others provide support through employment development programs. The Agrupación Ciudadana has built a network and a psychosocial support team to respond to all of these needs. 

MRM What has your relationship with prison officials and political authorities been like? Since 2006, we have gone from a right-wing government to two back-to-back leftists to the current ruling party of Nayib Bukele, elected in 2019 — what distinguishes their views on abortion, criminalization, and sexual and reproductive rights?

A color photograph of someone raising their fist, standing among other protestors holding banners,

AB We have maintained an open line of communication regardless of who heads the government to affirm international standards of human rights. In cases where women lacked transportation to their hearings we have provided it; we have also developed formal training processes to sensitize judges and personnel at the Attorney General’s offices.

As it concerns sexual and reproductive rights, only the most progressive sectors recognize abortion as a human right. There are more conservative positions, closer to the religious fundamentalists, who identify themselves as right-wing. But there are also some variations and shifts to this. 

MRM Did the Las 17 campaign allow you to identify these “variations” or changes in views?

AB What we learned from the Las 17 campaign was that we were exhausting the legal strategies we had employed in the past, such as criminal sentence review or cassation appeal. In other words, those strategies were not yielding the results we hoped. The media campaign for the 17 was also a part of a juridical strategy to obtain freedom for the criminalized women via pardon.1Ultimately, all of the original 17 women were released — and the campaign changed its name to “Las 17 y más.”

The tactic we deployed was a series of sit-down dialogues with legislators of any and all political affiliations. We invited a series of professionals, congresspeople, legislators from other countries, experts from a variety of fields. Depending on the ideological position of each respective representative we dealt with, we set a different tone and frame for the conversation. The strategy was not that they would listen to us, but that they might listen to other experts and legislators. This topic is difficult and complex to broach, but it has to be approached with restraint from a rational and multidisciplinary standpoint. We cannot begin from a moral or religious perspective to gain the traction we need. 

MRM What were the results of the Las 17 campaign?

The state, absent up until this point in their lives, becomes their executioner.

AB Two women regained their freedom via pardon. [Ultimately, all of the original 17 women were released –– and the campaign changed its name to “Las 17 y más.”] The campaign allowed us to expose the fact that this is not limited to a couple of cases. This is about a systemic reality, a pattern of injustice and gender stereotypes that impede on the bodies and lives of the women that have been criminalized.

MRM In the ruling for the case of Manuela v. El Salvador in November 2021, the Inter-American Court of Human Rights found the state of El Salvador responsible for the death of the young woman after she was prosecuted for an obstetric emergency. What are the implications of this ruling for the state of the criminalization of women in El Salvador and other countries? 

AB According to the ruling, women should no longer be incarcerated for obstetric complications. But we worry that women will continue to face criminalization. The economic and health care reparations for the family that were dictated in the ruling are underway. What has yet to be fulfilled is the publication of the ruling in the official web page of the Foreign Ministry and a public apology. That outstanding debt is the reason that we, along with other groups fighting for women’s rights, held a public celebration and installation of a memorial to Manuela in the town where she lived, under the slogan “Manuela is Justice and Hope.” It was a necessary symbolic act. It is a reminder of the harm brought to her family. The community and the world needs to know the truth. It is an act of symbolic and restorative justice for the community to recognize that Manuela was not guilty, that she was a victim at the hands of the state. 

MRM In March of this year, the Inter-American Court held a hearing in the case of Beatriz. A decision is expected later this year. What precedent would a ruling against El Salvador set on the world stage? 

AB It is the first time that the Court is considering a case against the state of El Salvador for abortion and the consequences of the total criminalization of abortion. We hope that with this ruling, no woman in the Americas will ever have to face the criminal justice system in her country simply for seeking access to interrupting a pregnancy for risks to her health. We also hope that we’re able to build future protocols for the prevention of obstetric violence, that non-punitive measures are put in place in El Salvador for obstetric complications, and that women gain the legal right to opt to interrupt a pregnancy for health reasons.

Metzi Rosales Martel is a Salvadoran feminist journalist.

Collage Treatments by Rachel Mendelsohn.

Thank you to the Rosa Luxemburg Stiftung – New York Office and the German Ministry for Economic Cooperation and Development (BMZ) for their support of this article.

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    Ultimately, all of the original 17 women were released — and the campaign changed its name to “Las 17 y más.”