El Salvador: How Emergency Powers Fuel Criminalisation of Women & Abortion

El Salvador, already known for its near-total ban on abortion, is witnessing a disturbing rollback of fragile progress made in recent years regarding the prosecution of women experiencing obstetric emergencies. Whereas the laws themselves remain unchanged – abortion is illegal under all circumstances, including rape, incest, and threats to the mother’s life – a shift in application, spurred by President Nayib Bukele’s state of emergency, is leading to a renewed wave of criminalization. In other words women who suffer miscarriages or stillbirths are once again facing police investigation and potentially decades-long prison sentences for aggravated homicide.

The situation is particularly alarming given El Salvador’s history. Since 1998, and reinforced by a 1999 constitutional amendment enshrining the protection of life from conception, women accused of terminating a pregnancy have routinely been charged with crimes carrying sentences of up to 50 years. The legal framework casts a shadow of suspicion over any pregnancy loss, turning hospitals into sites of potential criminal investigation. As one Salvadoran lawyer, speaking anonymously for fear of reprisal, explained, women are often brought into hospitals experiencing medical emergencies, unaware they are even pregnant, only to be met with arrest and accusations after a loss.

A Hard-Won Reprieve, Now Unraveling

Between 2009 and 2023, sustained advocacy by women’s rights groups, coupled with international pressure, led to the release of 81 women imprisoned on abortion-related charges, miscarriages, stillbirths, and other obstetric emergencies. Reproductive rights advocate Morena Herrera, who played a key role in securing these releases, described a period of cautious optimism. However, that progress is now demonstrably reversing.

The turning point came in March 2022, when President Bukele invoked emergency powers – a “state of exception” – ostensibly to combat gang violence. While framed as a temporary measure, the state of exception has had far-reaching consequences, including the suspension of due process and the imprisonment of approximately one in 50 adults. Advocates argue that these powers have quietly extended into hospitals, ensnaring women experiencing pregnancy loss.

According to a team of lawyers in El Salvador, at least 29 women have faced investigations since 2022, with several currently incarcerated. Cases are emerging where women are being prosecuted after stillbirths during breech deliveries, or even charged with attempted aggravated homicide after giving birth alone in a restroom, even when the baby survives. The chilling effect is palpable. Hospital staff are reportedly compelled to report patients to authorities, and healthcare professionals fear criminal liability for performing or even being suspected of performing abortions.

The Impact of Emergency Powers and a Climate of Fear

The core issue is the erosion of legal protections under Bukele’s state of emergency. Administrative detention, previously limited to 72 hours, has been extended to up to 15 days before an initial hearing, often without access to legal counsel or family contact. This extended period makes it significantly harder for defense lawyers to gather evidence and challenge prosecutions. Human Rights Watch Americas director Juanita Goebertus notes that women are often held in pre-trial detention for months or even years with limited access to legal support.

This climate of fear extends beyond the legal system. A Salvadoran healthcare professional, who requested anonymity, reported the installation of cameras in operating rooms, emergency consultation areas, and pharmacies approximately two years ago, creating a constant sense of surveillance. This, combined with the threat of prosecution, is deterring medical professionals and lawyers from intervening on behalf of women experiencing obstetric emergencies.

The recent dissolution of Citizens’ Group for the Decriminalisation of Abortion, the only organization in El Salvador actively campaigning for abortion rights, underscores the increasingly restrictive environment. The group cited an “incompatible” political climate as the reason for its closure, signaling a further silencing of voices advocating for reproductive freedom.

Obstetric Violence and International Human Rights Standards

The situation in El Salvador highlights a growing concern known as “obstetric violence” – a term encompassing the denial of treatment, lack of informed consent, and the criminalization of pregnancy loss. The Inter-American Court of Human Rights has recognized obstetric violence as a form of gender-based violence, violating rights to personal integrity, health, privacy, and judicial guarantees. In a landmark 2024 ruling, the court found El Salvador responsible for the case of Beatriz, a woman denied a life-saving abortion despite a fetus diagnosed with anencephaly, a condition incompatible with life.

The court determined that a lack of clear protocols for managing high-risk pregnancies, coupled with fear of criminal liability among medical personnel, led to the bureaucratization and judicialization of Beatriz’s case, ultimately harming her physical and mental health. The ruling reinforces the understanding that access to safe and legal abortion is a fundamental human right, essential for reducing maternal mortality and protecting bodily autonomy.

Broader Trends in Latin America

El Salvador’s regression is not isolated. Across Latin America, women’s reproductive rights are facing increasing challenges. In Argentina, President Javier Milei has curtailed access to abortion and contraception through funding cuts. In Chile, a vocal opponent of abortion has been appointed as minister for gender equality, and Ecuador’s courts have moved to ban the morning-after pill. These developments suggest a broader trend of conservative forces seeking to roll back reproductive rights gains in the region.

Morena Herrera fears that El Salvador is being presented as a model for other countries, potentially leading to a wider erosion of women’s rights across the continent. The lack of strong international political will to address these abuses further exacerbates the situation.

What Comes Next?

The immediate future for women in El Salvador remains uncertain. Advocates are working to document cases of criminalization and provide legal support to those affected, but the restrictive environment makes this work increasingly difficult. The Inter-American Court of Human Rights’ rulings offer a legal framework for challenging the country’s laws, but implementation will require significant political will. Continued international pressure and support for women’s rights organizations are crucial to reversing this dangerous trend. For women experiencing obstetric emergencies, the message is clear: seeking medical help carries significant risk, and the legal system offers little protection.