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El Salvador's Judges Jail for Miscarriage: Why & could it happen here?

Updated on January 23, 2015
In November, women in El Salvador marched for the freedom of 17 women accused of abortion, including Carmen Guadalupe Vasquez Aldana. She was pardoned this week.
In November, women in El Salvador marched for the freedom of 17 women accused of abortion, including Carmen Guadalupe Vasquez Aldana. She was pardoned this week. | Source

Ok so...

In 1997, at the age of 18, El Salvador put Carmen Vasquez in jail for the crime of Abortion after she had a miscarriage in the home of her employer, who had raped her. The child was a stillborn; a miscarriage and due to the incessant bleeding she went to the hospital. A hospital employee reported her - according to the law - because it was a suspected abortion and she was arrested at the hospital and sentenced to 30 years in prison for...yes...Abortion. She is one of many, many, many women who have experienced similar trials, I found. 16 others are being released, too, so at least that.

A friend of mine pointed this article out to me as Ms. Vasquez was released this week at her hearing. Her lawyer was able to argue reasonable doubt due to a lack of evidence on how the baby died. I was unclear why this took 7 years to do so I snooped. I was also curious what the hell kind of country has a law that locks up women for a miscarriage for 30 years considering they are as involuntary as passing gas.

I found nothing on the poor quality of legal care by her particular legal team. I found plenty on the poor quality of El Salvador's legal system. The ambiguity of the law being one; particularly the flagrant disregard for truly defining an abortion versus a miscarriage which are obviously two separate things. Choice is a huge factor. Trust me - as some one who has no choice at all anymore it would be better to be on trial for making one than be on trial for a bodily function.


via Oceania
via Oceania | Source

The El Salvadorian Constitution says:

My confusion is two-fold. Maybe the judges just drink heavily before cases or the translator was really really bad from Spanish into English on this copy but El Salvador's courtrooms seem to have some serious holes in their logic if they are jailing women for miscarriages or abortions...at least jailing just woman.


First, by their logic - an argument could be made that men are the actual carriers of life and that it is actually conceived when they are considering a women's eggs are irrelevant until a sperm comes along and fertilizes it. So if life is actually carried in the sperm to the egg, sets up camp and then grows there...it still starts in the sperm, guys. Sorry. This would also follow that all those sperm that don't make it are dead babies. Every time a guy masturbates - according to the El Salvadorian Constitution - men are murderers and are having miscarriages or abortions or whatever. Why aren't they all in jail? You gonna tell me the whole El Salvadorian male population doesn't jack off? Doubtful...

Second...the El Salvadorian Constitution defines the rights of (what I can only assume though it is not specifically stated, which I'm noting for the obvious reasons of the case) a living person are because of the whole "right to life" bit (which would seem silly to assume was for a dead person...or dead baby).

Not dead baby jokes, I swear...

While this may come across as a bad punch line, it is - in fact - a serious question. My confusion arises when I read Article 2 and question what right Ms.Vasquez was "guaranteed" to by El Salvador as a living, taxpaying citizen? Her honor and physical and moral integrity were no doubt destroyed by her employer along with her security - so what did El Salvador's court system do to "guarantee" to "protect", "conserve" and "defend" it from her rapist employer? Press charges? No...they took her liberty and right to life, you say? Huh. A dead baby had more right to life than she has and right to personal and family intimacy "guaranteed" to her by her own country's constitution? Huh. How the hell would she get arrested for that again anyway?

Source

Wow.

WTF, El Salvador?? You aren't under Sharia Law...Catholics know better than to question God's will and judgement. Then I read Article 3. Oh Yeah.That's right...our species is so stupid we actually need a clause where we have to tell each other this.

via Oceania
via Oceania | Source

Paternalism or Fascism? Or just plain corruption?

To start with a creative, if not good lawyer who for some unknown reason struggled with the whole "live person" aspect of arguing the constitution on their client's behalf could spread wide the word of the law, blow open the box, and push the envelope with "all persons being equal under the law" the dead baby holds no "hereditary office" or "privilege" entitling it to rights superior to the mother, whom is still living and still able to stake claim on said rights. Its not the implied context of the article, ruling class is, buuuut...America beats around the bush with the "necessary and proper" clause like crazy - why not give El Salvador a fun one? And lets face it, you're a bad enough lawyer to have messed up the whole "live v. dead" thing already so stretch, baby, stretch.

At any rate, Article 3 quickly reminded me that men get away with a lot of shit...like accusing women of murder for a miscarriage in some parts of the world. So I deeply considered paternalism but half their judges are women so that seems improbable.
However, further research also found that apparently El Salvador just isn't known for its judicious nature, in general. 81% of its judges are under investigation and it has a 95% impunity rate. Mean bastards.

Judicial complaints are on the rise. 487 out of 600 judges in El Salvador have complaints issued against them; one judge has at least 60 alone and some going back to 1995 still unresolved according to International Policy Digest. If that were Congress, bills would be passing. They'd be more effective in their unified corruption then we are in our actual policy making. But I digress...

It would appear they are just borderline fascists or (and this is more likely due to the corruption mentioned in the article) they are being paid, elected/seated and courted to support specific ends of specific 'government' just like any other country...only their leader - whom instigated this miscarriage=abortion nonsense likely simply just lost a child against his will or had a wife that kept having miscarriages, possibly intentionally. Anyway, I envision him laughing nefariously from behind a big desk every time a woman gets 30 years for a miscarriage.

Moving on...corrupt judges under a madman or madmen...or madwomen...it could be a religious fanaticism thing. Lets never count that out if we can't take women off the table. That's a lot of judges to go corrupt. 487 out of 600? That's more than corruption - that's revolution. 81%? That's a lot of judges to be "on the take" or "going rogue". 100% of people are selfish assholes, so its entirely possible we are talking about 470 or so individual cases of letting stuff slide and then maybe a few hardened RICO acts. I may be cynical but I am definitely a Christian and I still have a hard time believing there are 487 pure, fundamentalist Catholics driven by the good in their souls to do justice rather than 487 greedy pocket liners. I'm inclined to lean back towards the RICO ratio and we can call it the Good Intentions ratio, too, because maybe - just maybe - ten or fifteen judges did something corrupt for the right reason.

You'd have to actually go to El Salvador to actually know, though. Maybe down there, being corrupt is part of the qualifications. Maybe its their American politician and you become a judge just knowing its going to happen to you.

So then logic follows that my next question is: why those women? Who was Ms. Vasquez rapist/employer, really? How much did he pay that judge to put her away for 30 years and how much is he going to pay her now to shut her up? Or will he think its cheaper to hire a hit man?

After all, corruption is chic in El Salvador...apparently. And dead babies, rapists and corrupt judges have all the rights... (That may have been a borderline dead-baby joke. Sorry.)

Do you think miscarriage should be considered abortion?

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The Consequences

From Amnesty International's Twelve facts about the abortion ban in El Salvador

El Salvador has one of the most restrictive abortion laws in the world. Abortion is totally banned in all circumstances and harsh prison sentences befall those accused of terminating a pregnancy.

Amnesty International’s new report, On the brink of death: Violence against women and the abortion ban in El Salvador, charts how these restrictive laws are destroying the lives of women and girls. It finds:

Because of the ban, clandestine abortions are common. According to the Ministry of Health, there were 19,290 abortions in El Salvador between 2005 and 2008. More than a quarter of them were undergone by girls under 18. The actual figure is likely to be much higher.

Common methods used by women and girls to terminate a pregnancy include: ingesting rat poison or other pesticides, and thrusting knitting needles, pieces of wood and other sharp objects into the cervix, and the use of the ulcer treatment drug misoprostol, which has become widely used to induce abortions.

According to the latest World Health Organisation figures, 11 per cent of women and girls who underwent a clandestine abortion in El Salvador died as a result. However, due to the secrecy surrounding the practice the true figure is likely to be much higher.

Suicide accounts for 57 per cent of the deaths of pregnant females aged 10 to 19 in El Salvador, though it is likely many more cases have gone unreported.

Last year the National Civil Police registered 1,346 rapes of women and girls. Nearly two-thirds were aged under 15 or classified as “mentally incapacitated” and unable to give informed consent either because they were rendered unconscious or because of their mental health.

There is only one women’s refuge in El Salvador. It can accommodate just 35 women and children.

Miscarriage Law in America?

My friend stated that the person who had shown her the article had mentioned that certain Right-wingers were attempting to tack this type of fundamentalism into our laws. We discuss these things from time to time as I am generally more conservative and she more liberal. I pensively sat for a moment long enough for her to think I had hung up and I cleared my throat and I said, "Well....first of all that is just madness. Second of all, the only reason I could think of - and I know this sounds like I'm playing the card - is Obama Care." (I can do this though, as I am a Healthcare.gov member having lost my job and insurance for health reasons. I am not a hypocrite but a necessary participant receiving the benefits from the years I have already paid taxes as I am quite certain I will either die before or simply never see Social Security payouts.)

The healthcare situation in our country is so precarious because our population is A) huge B) irresponsible C) widespread and D) fiscally impossible because of A thru C. Our lawmakers could not agree on this but our president decided that we needed something so he pushed through what we had...heavily regulated, privatized healthcare block programs with extensive subsidies for people who fit through just the right sized window. Still fiscally impossible since everyone lies (see reason 'B') and everyone is a lot of people (see reason 'A').

That being said - how could Tea-Partyers try to get a miscarriage law passed? Well - for the same reason abortion isn't covered under insurance. Especially government subsidized insurance. Abortion, like a nose job, is most often elective and an intentional miscarriage could be construed as an abortion if it could be proved. It could even - depending on a definition of human life - be construed as homicide or infanticide. A mother takes enough pills with enough booze and gets caught talking about why or does heroin while knowingly pregnant and loses the child etc. These things become very expensive elective women's healthcare line items on the legislative budget docket so yes, absolutely, I could see the government trying to find a way to make a law against elective miscarriages with a burden of proof.

But then it comes back to the question: are we a means to the governments ends or is the government a means to our ends? Or is it naturally circular? So could it happen here? Could I go to jail one day for a miscarriage if I can't prove it was natural? It would seem that with just enough corruption the question is very hard to answer and the concern can only grow with state sponsored health care.

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