When a medical procedure is restricted to the point that it carries criminal penalties, some vulnerable people invariably end up behind bars.
Proponents of further restrictions on abortion typically argue these laws are intended to protect women and children, not to penalize women who may choose to end a pregnancy. The goal is not to jail women themselves, abortion opponents say, because the women who have abortions are victims rather than criminals. So pro-life activists who want to overturn Roe v. Wade typically don’t specify what punishment patients should face for having an abortion in a society where it’s illegal (although some have joked that it would be appropriate to put them to death).
But legal systems across the world — including our own — are finding their own answers to that question. They’re arresting women based on the way their pregnancies ended, providing hundreds of well-documented cases of women being imprisoned for the crime of seeking reproductive health care.
This is happening in countries with some of the harshest abortion bans in the world, as well as right here in the United States:
El Salvador often makes international headlines for its total abortion ban, which is among the harshest in the world. The conservative country is aggressive in its prosecution of women suspected of having illegal abortions, according to a recent report from Amnesty International. In 2013, the authorities charged 16 women and girls with the crime of abortion, which can carry a sentence of eight years in prison. Woman accused of inducing a miscarriage can even be charged with “aggravated assault against a family member,” a different crime that can land them in prison for up to 50 years.
El Salvador is definitely the most dramatic situation we’ve seen in the region.
The increased scrutiny around women’s pregnancies can have dire consequences. In 2010, for instance, a Salvadoran woman named Manuela was sentenced to 30 years in prison after she suffered complications while giving birth. Doctors treated her as if she had attempted an abortion; she was shackled to her hospital bed and accused of murder. She ended up dying from cancer in prison without being reunited with her two children. In 2012, a similar thing happened to a woman named Glenda, who didn’t know she was pregnant when she went to a hospital to be treated for heavy bleeding. It turned out she had miscarried; Glenda was sentenced to 10 years behind bars after a judge ruled that she “should have saved the baby’s life.”
“El Salvador is definitely the most dramatic situation we’ve seen in the region,” said Paula Avila, the advocacy adviser for Latin America and the Caribbean at the Center for Reproductive Rights, adding that the country’s total abortion ban represents a “gross human rights violation.” Among the cases that the Center is currently litigating on behalf of women jailed for ending a pregnancy, the majority are located in this country.
It’s an issue that falls along sharp economic lines. According to Anu Kumar, the executive vice president of Ipas, a global nongovernmental organization dedicated to ending unsafe abortions, the majority of the women who are imprisoned in El Salvador are quite poor. “They’re being taking to prison primarily from public hospitals,” she said.
In Ecuador, abortion is legal only in a few narrow cases — when it’s necessary to protect a woman’s life, or when a woman who becomes pregnant from rape is deemed to be an “idiot” or “demented.” If women are convicted of ending a pregnancy, they can face up to five years in prison.
Although the Center for Reproductive Rights has not yet opened any formal cases in Ecuador, the organization is working with its partners on the ground to document instances of women being reported to the police by doctors. According to the Center, they have become aware of approximately 92 cases of hospitals reporting women for having an abortion after those women showed up seeking critical care.
Doctors’ testimonies carry a lot of weight. This month, Women’s eNews reported that a woman in Ecuador can be sentenced to up to two years behind bars based solely on the testimony of a medical professional who says she had an abortion.
A 2013 report from Human Rights Watch documented the serious consequences of including abortion in Ecuador’s criminal code. Because women are afraid of being sent to prison, they often don’t seek the medical care they need. Although sexual assault is widespread in Ecuador — a recent government report suggested that one in four women there have been the victims of sexual violence — the doctors interviewed by Human Rights Watch said it’s too difficult to push women to share details about domestic abuse because it puts them at risk of being accused of self-inducing an abortion.
The United States
Many Americans may think of the criminalization of women’s reproductive choices as something that happens far away from home. But there are actually some surprising parallels between the United States and foreign countries with draconian abortion bans. As most of the rest of the world has been inching toward liberalizing abortion laws, the U.S. has been tightening them.
Even though abortion is legal under Roe v. Wade, an increasing number of restrictions on the procedure — in addition to the growing number of laws aimed at protecting “fetal rights” — can lead to the increased scrutiny of pregnant women in this country. Depending on the way their pregnancies end, U.S. women can even face the threat of prosecution. This can occur if a woman is accused of using drugs while she is pregnant, even if there’s no scientific evidence that the drug may pose long-term harm to her fetus. It can also occur in cases when women are suspected of having an illegal abortion.
The story of women ending unwanted pregnancies no matter what is a very old story.
For instance, an woman named Jennie Linn McCormack was arrested in 2010 for taking abortion-inducing medication, charged under a 1972 Idaho law that stipulates it’s illegal for a woman to perform her own abortion. McCormack lived 150 miles away from the nearest abortion clinic and decided that buying pills online was her best option. Since then, a 33-year-old woman in Indiana and a 39-year-old woman in Pennsylvania have both been imprisoned on similar charges after procuring abortion pills on the internet.
“It doesn’t really matter whether you’re talking about the U.S. or anywhere overseas. The story of women ending unwanted pregnancies no matter what is a very old story — desperate women take desperate measures,” Kumar told ThinkProgress. “It’s not surprising to me that we’ve seen cases in the United States where women are charged with criminal acts for ending a pregnancy. And I think we’re going to see more of that as our laws get even more restrictive.”
Other women have been charged with murder for allegedly seeking to harm their fetuses by attempting suicide, using illicit drugs, or even falling down the stairs. Groups like the National Advocates for Pregnant Women say that these charges are part of a larger pattern of singling out women for “second-class status” in the eyes of the law.
“When individual states try to recognize fetal rights, it really flies in the face of international human rights laws,” Tarah Dermant, the senior director of identity and discrimination at Amnesty International, told ThinkProgress. She added that while the U.S. is a leader on many areas of human rights, abortion policy isn’t necessarily one of them: “People in the international community are often really surprised because on paper, the United States has abortion laws that adhere to human rights standards. But the question is about access and implementation.”
Similarly to the U.S., women can legally end a pregnancy in Malaysia — at least in theory. Abortion is permitted in Malaysia up to 22 weeks of pregnancy, so there aren’t large numbers of women being arrested and prosecuted for having the procedure.
But that’s why the Center for Reproductive Rights is concerned about the case of Nirmala, a migrant worker from Nepal who was found guilty of illegally ending her pregnancy and sentenced to a year in prison. She’s the first woman in Malaysia who has been imprisoned for this crime.
“Nirmala’s case raises a red flag,” Melissa Upreti, the founding attorney of the Center’s Asia program, told ThinkProgress. “It’s an issue more broadly for women in Malaysia. It raises questions about whether more women are going to be arrested and prosecuted in the future. What does this mean?”
The case also points to larger issues plaguing migrant workers in Malaysia, who are routinely discriminated against. Malaysia relies heavily on foreign labor, and a recent Amnesty International report accused the government of not doing enough to protect those workers from exploitation. Nepali migrants often face labor abuses, wage theft, and sexual violence. And women’s reproductive health is often on the line; many low-wage workers are required to sign contracts agreeing to go back to their home country if they get pregnant.
“When you look at the case from that perspective, it seems that Nirmala has been sort of targeted,” Upreti pointed out.
Abortion is currently legal in Mexico City, but other parts of the country have responded to the liberalization of the law in the capital by tightening their own bans against the procedure. Abortion is completely criminalized in some areas, and women are routinely investigated under the suspicion that they may have illegally ended a pregnancy.
According to the reproductive rights organization GIRE, at least 679 women in Mexico were reported or sentenced for having an abortion between 2009 and 2011. In Guanajuato, a conservative state that has Mexico’s highest rate of teen pregnancy, dozens of women have been put on trial for abortion since 2000, and some of them have been sentenced to up to 30 years in prison.
It’s the systematic prosecution of women because they didn’t have perfect deliveries.
Some of those women are being convicted of homicide even when there isn’t any proof they intentionally ended their pregnancies. According to the Center for Reproductive Rights, there are at least 17 women serving prison sentences in Guanajuato whose pregnancies ended from completely natural causes after they suffered obstetric emergencies. “It’s the systematic prosecution of women because they didn’t have perfect deliveries — if they had miscarriages or stillbirths, or anything that went wrong, they can be sent to prison,” Avila said.
GIRE has also documented several cases along those lines. In Puebla, a state that defines life as beginning at conception, a woman named Laura went to the hospital when she started hemorrhaging — and then spent five days in police custody, accused of taking abortion-inducing drugs, before a judge threw out her case because it lacked sufficient evidence. Laura was left responsible for footing the legal fees stemming from a crime she didn’t commit.
Although Bolivia’s highest court recently slightly relaxed the country’s harsh abortion ban — ruling that women who become pregnant from rape or incest do not need permission from a judge to proceed with a legal abortion — the procedure is still illegal in nearly all circumstances. And according to a 2013 report from Ipas, the situation facing women in Bolivia is “alarming.”
Women convicted of an illegal abortion can face up to three years in prison. Ipas’ report documented 775 police investigations initiated against women suspected of having illegal abortions between 2008 and 2012. Most of those investigations targeted low-income women whose legal cases can languish for years, leaving them in fear of whether they’ll end up in jail.
Cesar Quiroga, a legal expert on reproductive rights and Bolivia’s penal system, told Ipas that charges of illegal abortion “are used as a scare tactic or to teach women a lesson.” In one high-profile case, an indigenous Guaraní rape victim was arrested after seeking medical attention after taking abortion-inducing medication. She spent her 10-day hospital stay in police custody before being transferred to prison, where she spent eight months in preventative detention.
The Philippines, which is heavily influenced by the Roman Catholic Church, has some of the strictest reproductive health laws in all of Asia. Abortion is completely criminalized and women charged with having an illegal procedure can face up to six years in prison. According to the Center for Reproductive Rights, at least some women are currently imprisoned for this crime.
They are heavily stigmatized when they come to the health system seeking help.
In the conservative country, birth control has historically been restricted and the population has skyrocketed — leaving hundreds of thousands of women with little option other than to seek out a clandestine abortion after they become unexpectedly pregnant. But the criminalization of abortion has had particularly chilling effects in this area. If women seek follow-up care from a medical professional after ending a pregnancy, they’re often greeted with physical and verbal abuse. Even though post-abortion care is legal, doctors may refuse to treat them or threaten to report them to the police.
“Often times, post abortion care is life saving care because women come in with massive complications and need immediate medical attention. But they are heavily stigmatized when they come to the health system seeking help,” Upreti said. “We have interviewed many women who have had really horrific experiences.”