In this new movement toward criminalization, El Salvador is in the vanguard. The array of exceptions that tend to exist even in countries where abortion is circumscribed–rape, incest, fetal malformation, life of the mother–don’t apply in El Salvador. They were rejected in the late 1990′s, in a period after the country’s long civil war ended. The country’s penal system was revamped and its constitution was amended. Abortion is now absolutely forbidden in every possible circumstance. No exceptions.
There are other countries in the world that, like El Salvador, completely ban abortion, including Malta, Chile and Colombia. El Salvador, however, has not only a total ban on abortion but also an active law-enforcement apparatus–the police, investigators, medical spies, forensic vagina inspectors and a special division of the prosecutor’s office responsible for Crimes Against Minors and Women, a unit charged with capturing, trying and incarcerating an unusual kind of criminal. Like the woman I was waiting to meet.
What we have in El Salvador, then, is an actually principled forced pregnancy legal regime. This framework does not have the procedural inequities–vague statutory language and/or arbitrary enforcement–that have characterized American attempts to ban abortion, and which in my judgment gave these laws fatal constitutional defects even before considering substantive violations based on privacy or gender equality. (The El Salvador laws might fail the latter test, but certainly can’t be said to fail the former.) This framework also doesn’t have the fundamental unseriousness of most of the policy proposals of American pro-lifers; it takes the idea that abortion is taking a human life seriously, and actually makes logical attempts to apply the law and is willing to hold women responsible.
And yet, even in this context, what are the substantive effects?
Abortion as it exists in El Salvador today tends to operate on three levels. The well-off retain the “right to choose” that comes of simply having money. They can fly to Miami for an abortion, or visit the private office of a discreet and well-compensated doctor. Among the very poor, you can still find the back-alley world described by D.C. and the others who turn up in hospitals with damaged or lacerated wombs. Then there are the women in the middle; they often rely on home-brewed cures that are shared on the Internet or on a new underground railroad that has formed to aid them.
Even in the in the context of an abortion criminalization far less arbitrary and far more rigorously enforced than any comparable American attempt would ever be, affluent women still have access to safe grey market abortions. With apologies to my long-term readers, let me put it in boldface: the only major question about abortion policy is whether poor women will have the same access to safe abortions inevitably enjoyed by the affluent. Even where abortion laws are not arbitrary in the formal legal sense, they have grossly inequitable effects in practice, full stop. Which is why I believe that one can be a progressive and “pro-life” in the sense of believing that abortion is morally wrong, I don’t believe there’s any defensible progressive argument for attempts to criminalize abortion.
And what of the women forced to rely on the black rather than the grey market?
“Back-alley abortion” is a term that has long been part of the abortion debate. In the United States, in the years since Roe v. Wade, it has come to seem metaphorical, perhaps even hyperbolic, but it happens to conjure precisely D.C.’s experience. And it’s easy in El Salvador to find plenty of evidence that D.C.’s story is neither isolated nor the worst case. A report by the Center for Reproductive Rights offers this grim list of tools used in clandestine abortions: “clothes hangers, iron bars, high doses of contraceptives, fertilizers, gastritis remedies, soapy water and caustic agents (such as car battery acid).”
I’ll probably have more to say later, but needless to say the article is must-reading.
…UPDATE: Conveniently, James Joyner shows us the American pro-life mindset for comparison sake:
Why, how could the United States even think of becoming more like those backward countries? Of course, aren’t Mississippi and South Dakata essentially third world countries, anyway, filled with Jesus loving backwards ass redneck hicks?
Now, granted, there is no move anywhere in the United States to apply criminal sanctions to women who seek abortions. Indeed, even in pre-Roe America (aka, “the Dark Ages”) sanctions applied only to doctors and facilities that performed the procedure.
Shorter Joyner: It’s so unfair to compare American pro-lifers to ones in El Salvador–I swear, we’re completely unprincipled hacks who don’t take the only legitimate rationale for abortion criminalization seriously, and don’t think women are moral agents! It never ceases to amaze me that American pro-lifers think that the illogical construction and aribtrary enforcement of abortion statutes is an argument in their favor.
You have to like the pathetic dollop of red-state ressentiment, which is a nice way of avoiding the fact that the North Dakota and Mississippi legislatures, in fact, have passed or are seeking to pass abortion legislation that would be more reactionary than exists in almost any liberal democracy. You can think this is a good or bad thing, but to imply that it’s pre-emptively unfair to point this out is silly.