Evelyn Beatriz Hernández of El Salvador, 21, had been sentenced to 30 years of prison for the homicide of her fetus. Which Hernández had served 33 months of. Her conviction was overturned in February for lack of evidence following which a new trial was ordered. The prosecutors had originally demanded a 40-year long sentence. Following the verdict of her acquittal, Hernández exclaimed, “thank God, justice was done!” She also thanked the dozens of women who waited at the courthouse and the foreign diplomats who followed her close closely. Unsurprisingly, this particular charge of murder brought an international spotlight on Central America’s outdated and frankly dangerous, abortion laws.
What makes Evelyn Hernández’s case exceptional is the fact that she is a victim of sexual assault who didn’t know she was pregnant until the time she had to deliver the fetus into an outdoor toilet. Hernández was 32 weeks pregnant in 2016 when she experienced extreme abdominal pains. She had to rush to an outdoor toilet where she ended up delivering the baby. Her mother found Hernández unconscious by the latrine. And, the baby was later found lifeless in a septic tank – it is at this point that she is branded a criminal.
The mother and the daughter both insisted that they weren’t aware of the dead fetus in the tank, but prosecutors remained undeterred and pressed charges. It is crucial to note that while prosecutors had already pressed charges against Hernández, the forensics couldn’t determine if the fetus had died inside the womb or the septic tank. At the retrial, prosecutors maintained that Hernández is eligible for a prison sentence for being unable to protect her fetus. Shocking as it might seem, this is a common practice in El Salvador where the state pursues legal cases against women who have miscarriages or other obstetric emergencies, with full hostility and convicts these women as murderers. Hernández’s was the first such case to have been allowed a retrial.
El Salvador is one of three Central American nations (including the Dominican Republic and Nicaragua) with a strict no-no policy on abortion. Women convicted of having had abortions usually serve a term from two to eight years. Women who seek medical help at public hospitals following a miscarriage may have to face accusations of killing the fetus. These mothers are charged with aggravated homicide wherein she might have to serve up to a term of forty years. The worst affected women of such a law are usually poor, young and victims of rape.
The skewed reproductive laws in El Salvador is also a result of religion and civil violence. El Salvador is a deeply religious country where 80% of the population identify themselves as either Catholic or evangelical Christian. The society is also largely patriarchal plagued by widespread gang violence. Stats show that almost 25,000 women become pregnant as a result of rape – the population of El Salvador is estimated at 6 million. While reproductive laws remain archaic in El Salvador, women often have to undergo clandestine, unsafe and medically unsound abortions to rectify a dire situation.
It has emerged from recent polls that citizens do want more inclusive and lenient abortion laws. But, there’s a catch in this situation too for many in the country strongly believe rape victims should be made to carry pregnancies to term. Hernández’s case emerged as a test for women’s reproductive rights under new President Nayib Bukele. Bukele advocates abortion as an acceptable procedure only when the mother’s life is at risk. He also opposes criminalizing women who have miscarriages. Following the acquittal of Hernández, Erika Guevara-Rosas, Americas Director at Amnesty International said that “this is a resounding victory for the rights of women in El Salvador. It reaffirms that no woman should be wrongly accused of homicide for the simple fact of suffering an obstetric emergency.”
El Salvador’s abortion laws remain draconian in today’s day and age. Hernández’s case should compel the state of El Salvador to introspect such a flaw in the judiciary. The world watches on with bated breath in the hope that El Salvador births a better future for its women where they are guaranteed a private, safe and cost-effective healthcare. For reproductive rights are indeed healthcare.