MEXICO CITY » The woman’s doctors urged an end to her pregnancy, saying that her life could be at risk and that the fetus would not survive anyway. El Salvador’s highest court rejected the plea, knocking down a challenge to one of the strongest anti-abortion laws in the world.
On Tuesday, however, less than a week later, the woman, known publicly only as Beatriz, was recovering from a Caesarean section that ended her high-risk pregnancy after almost seven months of gestation, raising a fundamental question: Did doctors in a country that bans abortion under any circumstances manage to terminate the pregnancy without violating the law?
The answer lies in El Salvador’s terse and stringent law itself, doctors said. With no guidance on how to proceed in complicated cases or a clear definition of what constitutes an abortion, they say, the country’s strict penal code has left itself open to interpretation.
The court seemed to recognize the ambiguity even as it ruled, 4-1, against Beatriz’s appeal, citing the government’s "absolute impediment to authorize the practice of abortion."
However, the ruling continued, the decision to "intervene medically" to save Beatriz was to be determined by medical professionals.
On Monday, doctors removed Beatriz’s fetus — suffering from a severe defect that prevented the brain from developing — through an incision in her abdomen. They would have used the same procedure had the court ruled in Beatriz’s favor, according to her lawyer and the nation’s health minister, Marma Isabel Rodrmguez.
Yet the procedure was not an abortion, the health minister said, because the fetus was delivered, placed in an incubator and provided fluids. It lived for five hours.
One Salvadoran anti-abortion group called the outcome a victory, describing the procedure as an induced birth in which the baby died from natural causes. Some abortion-rights advocates welcomed the outcome, too, saying that it showed that El Salvador’s ironclad restriction did not have to imperil women with dangerous pregnancies, even when the fetus had little or no chance of surviving.
"It is an abortion," said Alejandra Cardenas, legal adviser for the Center for Reproductive Rights. "They are interrupting an unviable pregnancy."
At its root, some legal experts said, the case was largely a battle over words.
Salvadoran law makes no distinction between an abortion and an induced premature birth, said Evelyn Farfan, a professor of constitutional law at the University of El Salvador. So when the judges said that an intervention was allowed but an abortion was not, she said, they "modulated the terminology they used in the ruling to say the same thing without referencing the same word."
Salvadoran obstetricians and gynecologists have developed their own procedural guidelines to fill the gap in the law, including defining the 20th week of pregnancy as the dividing line between what would be an abortion and a premature delivery.
Many uncertainties remain, however. Morena Herrera, an abortion-rights activist and a close adviser to Beatriz, said that one of the doctors involved in Monday’s procedure was worried that he would be prosecuted.
Sidney Blanco, one of the high court judges who ruled against Beatriz, said that "if they intervene and only Beatriz survives" because the fetus could not be saved, then it could be that her doctors "were not committing any crime."
Lawyers and doctors say that pregnancies in El Salvador are regularly terminated at different gestation periods.
"It’s a risk that individuals take," Herrera said.
Motivation has become a determining factor in distinguishing abortions from early deliveries, some legal experts say.
"An abortion is done with the intent of killing the baby," said Josi Miguel Fortmn Magaqa, director of the Institute of Legal Medicine, which evaluates medical issues for the nation’s highest court. "An induction is done with the intent of saving the mother."
Dr. Margarita de Romero has been a gynecologist in San Salvador for 20 years. She said she was deeply religious and opposed to abortion but has terminated pregnancies or induced premature births many times. In 2010, de Romero treated a woman named Melanie, a woman with an ectopic pregnancy, in which the fetus was growing outside the uterus. At eight and a half weeks of gestation, she complained about pain, and her hemoglobin levels began dropping. Within 48 hours, de Romero had extracted the embryo through an abdominal incision.
"I didn’t ask for permission," said de Romero, who labeled the procedure as a laparotomy — a surgical abdominal incision — and not an abortion.
Prosecutions do occur, however. According to the Center for Reproductive Rights, at least 120 women in El Salvador were tried between 2000 and 2011, charged with the crimes of abortion or aggravated homicide in connection with the death of a fetus. Thirty-eight of them were convicted, the center says.
Heavily influenced by the Roman Catholic Church, Latin American nations have long been known for having some of the world’s strongest anti-abortion laws. El Salvador, Nicaragua and Chile retain total bans on the procedure and threaten lengthy prison sentences for the women who undergo them and the doctors who perform them.
A trend to loosen restrictions has emerged in recent years, however, with Mexico City and Uruguay legalizing abortions during the first trimester. Courts in Colombia, Brazil and Argentina have granted exceptions for certain cases such as those involving rape, incest or severe fetal malformations.
Shortly after El Salvador’s highest court issued its ruling, the Inter-American Court of Human Rights ordered the government to "immediately adopt the necessary measures" to protect Beatriz’s health and to ensure that there would be no "punitive action from the state."
Beatriz said her doctors would have terminated her pregnancy regardless of what the high court ruled, expressing a confidence that they would value her life over that of an unviable fetus.
Melanie, the woman with an ectopic pregnancy, said she felt the same way.
"I knew that at no moment they would say, ‘We’re going to risk Melanie’s life,’" she said.