For decades, abortion was considered a private matter. Now, a Nation investigation shows, women who terminate—or lose—pregnancies are facing prosecution and prison time.
By Zoë Carpenter
Last year, a lawyer named Cristina Torres got a cryptic phone call from a young woman. The caller explained that she was contacting Torres on behalf of her mother, Sara (a pseudonym), who was imprisoned in the city of Latacunga, a windy crossroads on the Pan-American Highway, high on the volcanic plateau of central Ecuador. Sara was hoping to secure a form of legal relief that would allow her to serve part of her remaining sentence outside of detention. The woman asked Torres to take on her mother’s case—but as for the crime that Sara had been charged with, the daughter preferred not to speak of it. Just go visit my mother, she pleaded.
This article was supported by the Pulitzer Center.
So Torres drove to Latacunga and, in the prison’s visiting room, met a tall woman with an upturned nose and honey-colored eyes. As Torres would learn, she’d had a difficult life. As a teenager, Sara said, she was raped by her aunt’s husband and became pregnant. After leaving her parents’ home, she began working as an escort to wealthy men in Quito. At some point, she tried to make a living as a seamstress but could not, so she returned to sex work, though she hid it from her daughter and, eventually, her son. By the time she was 38, Sara said, she thought she was too old to get pregnant again.
Inside the prison, Sara and Torres spoke across a table, separated from the other prisoners and visitors by only a thin partition. There were no chairs, so they stood. A guard looked on. When Torres asked about the charges against her, Sara lowered her voice. “I had an abortion,” she said.
Although abortion is illegal under most circumstances in Ecuador, thousands of women here end pregnancies every year, either seeking out clandestine procedures or inducing abortion themselves. Sara had taken misoprostol, a drug sold over the counter in Ecuador to treat stomach ulcers but also commonly used for medical abortion. In clandestine settings, misoprostol is generally safer than other methods, but an incorrect dose and other factors can lead to complications. After Sara took the pills, she began to bleed heavily. Alarmed, she went to a public hospital in Quito’s sprawling southern region, arriving in the afternoon. She said nothing about the drug she’d taken.
According to Torres, a doctor diagnosed a urinary-tract infection and reported on her chart that the infection had provoked a miscarriage. But a few hours later, after a shift change, a new doctor took over her care and became suspicious. He began to interrogate Sara, although her condition was still unstable and her fever stubborn. Around 10 pm, medical staff gave her an anesthetic and performed a curettage to remove the remaining tissue from her uterus. Afterward, still groggy from the anesthetic, she overheard the doctor arguing with a nurse about calling the police.
The officers arrived at about midnight. Sara was still bleeding, and a nurse hurriedly gave her a few sanitary pads before the police took her away to a detention unit. By early morning, she was assigned a public defender, who advised her to accept a plea deal. Soon, she was before a judge. Before noon, she was en route to the prison in Latacunga to serve a sentence of two years and eight months.
Ecuador first banned abortion in 1837, when the country established its original penal code. Since 1938, when exceptions were created for women whose health is in danger and in cases of rape when the victim is considered mentally disabled, the law has remained largely unchanged, albeit the subject of intensifying public debate. Despite the near-total ban, health officials recorded 431,614 abortions between 2004 and 2014. Many women resort to clandestine procedures with varying degrees of risk, with sometimes deadly consequences. Unsafe abortion is one of the leading causes of injury and death for Ecuadorian women and girls, accounting for more than 15 percent of maternal deaths in the country.
Until recently, the state rarely enforced the ban. Although abortion was deeply stigmatized and often dangerous, it was considered a private matter. Then, beginning about a decade ago, when feminists and the religious right clashed publicly over legal reforms, women seeking medical attention for abortion complications or other obstetric emergencies were suddenly subject to unprecedented scrutiny. Since then, abortion-related investigations and prosecutions have escalated sharply. Between 2009 and 2014, Ecuador’s public defender recorded 40 cases of women prosecuted for abortion. Since 2015, according to government data, prosecutors have investigated at least 378 cases—including eight in January 2019 alone.
Women all over the country have been caught in the crackdown, the full scale of which has not previously been reported—in cities like Cuenca and Guayaquil and in villages high in the Andes and deep in the rain forest. The prosecuted include teenagers and single mothers, a young woman who worked at an Internet café in the lush coastal province of Esmeraldas, another who sold ice pops on the streets of Quito, and a woman from a town near the Colombian border who helped her 13-year-old daughter end a pregnancy that resulted from incest. Some women sought out abortions because they couldn’t afford another child. Others were in abusive relationships or had been raped. According to the Ecuadorian legal organization Surkuna, which tracks these cases and has defended more than two dozen of the accused, most of the women who come to the attention of prosecutors live in deep poverty.
According to interviews with women who’ve been prosecuted and their lawyers, many of these cases are marked by serious violations of the rights of the accused—by doctors, police, prosecutors, and judges—ranging from coerced confessions to manipulated evidence. Like Sara, most of the women came into contact with the criminal-justice system after being reported to police by medical providers, in violation of professional secrecy laws. Miscarriages and intentional abortions are often indistinguishable, making it difficult for prosecutors to prove, in the absence of a confession, that someone has purposefully terminated a pregnancy. A number of women report being interrogated and pressured to confess in hospital rooms—either by doctors or by law-enforcement officials—while in the throes of a medical emergency, violating laws requiring that suspects be informed of their right to remain silent and their right to an attorney. According to defense lawyers, doctors have threatened to withhold medical care from some women in critical condition until they confessed. Others were advised to plead guilty even when prosecutors lacked enough evidence to convict them. Because of the inconsistency between the two doctors’ reports in Sara’s case, for instance, if she had insisted on her innocence, prosecutors would likely not have had proof beyond a reasonable doubt of her alleged crime, Torres said.
Efforts to enforce the abortion ban became so aggressive that the legal system started to treat a range of pregnancy complications as evidence of criminal behavior. According to defense lawyers, several women have been detained or prosecuted for unintentional miscarriages, often on the basis of discredited forensic methods. One woman charged with homicide after what her lawyers say was a late miscarriage is serving 22 years in prison. For abortion, prison sentences range from six months to two years, more if the crime is considered aggravated. In lieu of prison time, some women have received alternative sentences explicitly designed as psychological correctives, such as community-service work in orphanages.
Ecuador’s National Assembly is currently debating changes to the criminal code, including the decriminalization of abortion in all cases of rape and incest. A final vote is expected by June. The reform implicates various overlapping crises, including widespread sexual violence and teen pregnancy; almost 14,000 rapes were reported in the last three years—a figure that is likely far lower than the actual number of incidents—with more than 700 of them coming from girls under 10. Feminist activists have brought a surge of attention to the issue with public demonstrations, and the atmosphere feels ripe for reform. It felt that way six years ago, too, the last time legislators considered relaxing the ban. But then, instead of a model of reform, Ecuador became a test case for the consequences of criminalization.
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In the late 1990s, Pilar García began performing abortions out of a nondescript office building in central Quito. Although criminal prosecutions were rare at the time, the options for women with unwanted pregnancies were limited, and many resorted to painful, dangerous procedures. An ob-gyn, she wanted to create a space for abortions to be done safely and professionally. (Because of recent threats against her, we are using a pseudonym.) She usually saw 12 to 15 patients a month, sometimes girls as young as 13. “It was very intense,” García said. She doesn’t remember the faces of many of the women she helped; she’s blocked them out because she heard too many difficult stories.
In 2012, a couple went to the office, posing as patients. Once inside, they ransacked the premises, looking for incriminating documents, yelling that people should know what was going on there. The skirmish turned physical when the female intruder tried to pull a set of keys from the hands of one of García’s assistants. “After the attack, we started to think about closing down,” García said. They stopped offering surgical procedures, providing medical abortions only.
It wasn’t just the intrusion that made the work seem riskier; the political environment was shifting as well. In 2011, after efforts by feminist groups to destigmatize abortion, as well as campaigns by anti-abortion groups to limit abortion access even further and to ban emergency contraception, Ecuadorian lawmakers began debating revisions to the criminal code, including the decriminalization of abortion in all cases of rape. Virginia Gómez, the president of the reproductive health organization Fundación Desafío and a longtime abortion-rights advocate, assumed an increasingly high-profile role as an advocate for the change. In many ways, the political debate felt like progress: A taboo had become the subject of open discussion. Three female lawmakers sponsored the reform, and as it neared a vote in 2013, its passage seemed a real possibility. “We had the votes,” Gómez said.
Then came the backlash, led by Rafael Correa, who served as Ecuador’s president from 2007 to 2017. He is a self-described leftist who came to power on the promise of a “citizens’ revolution” against the “bourgeois state.” But his social politics were influenced by his Catholic faith, and he took a conservative position on issues of reproductive rights. Under him, a national family plan that promoted sex education and contraceptive access was rewritten to emphasize traditional family structure and abstinence. The result, according to Dr. José Masache, was a spike in teen pregnancy. Masache, who works on a program at Quito’s central obstetrics hospital for pregnant girls ages 10 to 19, said that contraceptive distribution to public hospitals became inconsistent, so they sometimes didn’t have enough for patients who wanted them. Today, Ecuador has one of the highest rates of adolescent pregnancy in Latin America, with 12 percent of girls 10 to 19 having been pregnant at least once.
In October 2013, the night before the National Assembly vote, Correa declared in a televised address, “I will never approve the decriminalization of abortion beyond what’s in the current law. What’s more, if these betrayals and disloyalty continue…I will resign from office.” His statement doomed the reform, and the next day, instead of holding a vote, one of its sponsors withdrew the proposal. She and two other female legislators from his political alliance who supported the reform were punished with a 30-day suspension from their posts for what he called an act of “treason.”
While the influence of the Catholic Church and other conservative groups played a role in killing the reform, Correa’s position also reflected the misogyny embedded in Ecuador’s militant left. Clara Merino, who has long been active in Ecuadorian workers’ and indigenous movements and now runs the women’s organization Fundación de Mujeres Luna Creciente, said that while “sovereignty of the body” has often been associated with anticapitalist movements, Ecuador’s left has also “been so closed and machista and violent.” (Her brother Ricardo Merino, a leftist activist, was slain by police in 1986 in what was considered an extrajudicial killing.) Cristina Burneo Salazar, a feminist writer and professor at the Universidad Andina Simón Bolívar in Quito, said, “Historically, what we call ‘left’ has been shaped by patriarchy. Even if its ideological foundation seeks to ensure social justice and redistribution of wealth, its most ancient oversight has been the inequality based on sexual difference. Ecuador is no exception.” Correa reflected this oversight in his public politics, and many women experienced it personally. “The men of the left are very macho,” said Guadalupe Tobar, a sociologist and the daughter of a communist guerrilla who abused her and her mother relentlessly. When María Fernanda Solíz, an academic in Quito, described her abusive ex-husband, she used a phrase common in Latin American feminist movements: “En la calle, Che. En la casa, Pinochet.” (In the street, Che. At home, Pinochet.)
At the time that the National Assembly was debating reforms to the criminal code, a young lawyer named Karen Duque was working as a public defender in the province of Esmeraldas, on Ecuador’s northwest coast. That year, she was assigned to the case of Paula, a 20-year-old who was accused of using misoprostol to end a pregnancy. (Because of the stigma around abortion in Ecuador, we have changed the names of several of the accused, including hers.) According to legal documents, she testified that she’d suffered a miscarriage after a fall and had not known she was pregnant; after bleeding heavily for days, she went to a public health clinic, where a staff member called the police. According to Duque, Paula was arrested and taken to a hearing with an IV still in her arm, then placed in preventive detention along with her 2-year-old son. After pointing out that the prosecution had no proof Paula had taken misoprostol, Duque was able to win an acquittal—but only after Paula had spent a month detained with her child, who developed the flu, and lost her job at an Internet café. (Preventive detention is supposed to be reserved for suspects who pose a flight risk or other danger, but it has been used in a number of abortion-related cases.) Paula’s case gave Duque serious doubts about the legal system. “You’re not supposed to go [to health centers] and end up in prison,” she said.
The same day that Paula was arrested, two other women in Esmeraldas were detained under similar circumstances. There is no evidence the three arrests were part of a coordinated operation. But they did signal an escalation of abortion-related criminal cases that many see as bound up with the high-profile debate about the criminal code and Correa’s sweeping influence. “The women’s movement strongly inserted the issue of abortion for rape [into public consciousness]…and the question began to arise of what should be done, what was legal, what was not legal,” said Ana Vera, an attorney who directs Surkuna. Doctors who might not have thought much about abortion were suddenly hyperaware of its illegality, and new medical-malpractice laws helped create an atmosphere of fear among doctors that they might be criminalized themselves, even if they hadn’t provided an illegal procedure.
“Doctors begin to mix the issues in their heads and say, ‘If I do not report an abortion, I can be prosecuted for malpractice,’” Vera said—for instance, if a woman under treatment for complications from an illegal abortion died. “If you ask them, they denounce [women for abortion] because they are protecting themselves from malpractice—which is a bit absurd, but that’s a bit how they see it.” In 2017, concerns about doctors becoming an extension of law enforcement escalated to the point that the Ministry of Health released a guidance reminding health providers of their duty to maintain patient confidentiality—as mandated by Ecuador’s Constitution and criminal code—and to care for women with abortion-related complications. There’s little evidence so far that the guidance has limited reports from doctors; Gómez said the practice has already been “institutionalized.”
In 2014, as the number of abortion-related prosecutions was rising, Ana Vera, along with her sister Verónica Vera and another attorney, founded Surkuna, initially intending to collect data on who was being prosecuted, where, and under what circumstances. “We started to investigate because we were interested in knowing what was happening, because criminalization is a recent issue in our country. Although we have had the same law for [80] years, cases of criminalization began to emerge in force only in 2009,” Ana Vera said. “But little by little, we were having to litigate cases because there were no lawyers who wanted to defend women who were criminalized for abortion and childbirth. That put us in a situation of having to do it ourselves.”
Surkuna’s office occupies a single room up a narrow flight of stairs in a small office building in Quito, on a street lined with yellow-blossomed trees. The day I visited was stormy, and a bucket had been set on the floor to catch the drips from a leak in the ceiling. Vera, who has a round face and intense, caramel-colored eyes, sat at a circular table with a loose top that kept threatening to tip over, typing messages on her phone while maintaining a rapid-fire discussion about her work. Today, Surkuna’s five-person team conducts research on a range of women’s-rights issues and litigates cases of violence against women in addition to those involving reproductive rights; it also organizes educational workshops with medical providers on patient confidentiality and with lawyers on abortion-related legal strategy. Vera estimates that Surkuna has defended about 20 women accused of abortion, all of whom lived in various states of financial precariousness and most of whom were reported to police by medical providers.
One of them, a 20-year-old whom I’ll call Martina, lived off the small income she made selling a fruity ice pop called Bon Ice on the streets of Quito. She was dating an older, wealthier, married man. When he found out she was pregnant, he gave her misoprostol and recorded a video of her taking the pills—“because he was crazy,” said Vera, though perhaps also in an attempt to blackmail her or elide his own responsibility. Martina did not know what to expect after taking the medication. Though she felt a bit ill the next morning, she went out to work. She began to bleed on the street, then fainted. When paramedics arrived, they called the police. Prosecutors charged her with a flagrant offense, a common practice that Vera criticizes for effectively stamping the accused with guilt from the start. Flagrant offenses require an audience with a judge within 24 hours; because Martina was still medically unstable, a judge went to the hospital and conducted the hearing in her room. Prosecutors eventually dropped the charges against her, citing a lack of evidence.
In March, I met a woman named Carmen Aguinda, who was sentenced to six months in prison for an illegal abortion. She is a taut wire of a woman, her arms almost impossibly thin. A faint scar runs from beneath her left earlobe across the hollow beneath her cheekbone. Another scar transects her abdomen—or at least I imagine it is there. While we talked, she kept her hands clasped on the table between us, anxiously working her fingers.
Aguinda grew up in a remote part of Ecuador’s northeast, near the border with Colombia. She lived with her four siblings, her mother, and her mother’s abusive partner. Her early memories are of nights filled with violent arguments. Sometimes her mother would take the children to a neighbor’s house to get them away from the fighting. One night, Aguinda and her brother ran away and got lost in the black, humming forest. Starting when she was 6 or 7, she was sexually abused by three relatives—one of them her older brother, another the husband of an aunt with whom she’d been sent to live in Guayaquil.
Today, Aguinda is 34 and lives in Lago Agrio, a gritty border town named for Sour Lake, Texas, where the company that became Texaco first drilled for oil in 1903. Six decades later, Texaco was the first major oil company to drill in the rain forest in northeastern Ecuador, leaving the jungle around Lago Agrio pockmarked with hundreds of waste pits that leached oil and chemicals into the region’s soil and rivers.
Aguinda has three children, who are 12, 8, and 6. Then she found out she was pregnant again. “It was a pregnancy I didn’t want, because of my economic situation,” she explained. “I was under pressure.”
The options that women like Aguinda have are defined by a brutal equation: geography plus economic resources plus personal connections plus luck. Misoprostol has generally made clandestine abortion safer and more accessible, but while it’s sold over the counter, it isn’t always easy to get. One woman I met in Quito remembers being told to ask an older man to buy it for her, since he would arouse less suspicion as someone in need of ulcer relief. The medication’s increasing use has also changed the way that abortion bans are enforced: Without an “abortionist” to pursue, women bear the brunt of criminalization. The pills can be taken orally or inserted into the vagina; some women have been prosecuted after doctors found undissolved remnants.
A few organizations operate hotlines to provide information about obtaining and using medication to safely terminate a pregnancy. One group, Las Comadres—which translates roughly as “the Godmothers”—accompanies women through the process. (For more on Las Comadres and the evolution of abortion-rights activism in Ecuador, see Part Two online.) A South American NGO facilitates a network of more than 150 health professionals who provide safe abortion across Ecuador, but they aren’t widely known. The names of people—sometimes doctors, sometimes not—who provide clandestine procedures circulate through word of mouth, with little assurance of their safety record. Solíz said that when she searched for a way to end a pregnancy that was too advanced for her to use medication, “it was so hard to get information”—even though she had a doctorate and the means to pay. She ended up having a painful, traumatizing surgery that left her with a life-threatening infection. “In remote zones, it’s very difficult [to obtain safe abortions],” said Clara Merino, who works with health promoters in rural areas. Sometimes they’ll take women to reputable providers in Quito, but “criminalization has made this harder.” It’s the poorest and most geographically and socially isolated women who are most likely to resort to gruesome procedures, either on their own or at the hands of inexpert practitioners—and then end up with the kind of complications that put them in the criminal-justice system.
That’s what happened to Aguinda. Some of the facts in her case are murky, but what is clear is that her brother found her, bleeding and nearly unconscious. She woke up in a hospital wondering how she got there. Her fear and confusion deepened when she saw a police officer. A prosecutor arrived with his secretary, and they began to question her: What happened? What was the method? With what tools? Aguinda told them, “I did this to myself.” But even her lawyer, Ruth Ramos, conceded that she must be protecting someone. The incision that was made to remove the fetus—horizontal, as in a cesarean section—looked too professional, and the pain would have made it impossible to complete the operation. Regardless, by the time she arrived at the hospital, Aguinda was alone, with “absolutely no one.”
The botched procedure nearly killed her. In the past, that likely would have been sufficient punishment. Instead, as soon as she was stable enough to leave the hospital, she was sent six hours away to the prison in Latacunga. During the day, she sat by herself in silence. Fights broke out constantly around her. She had no money to call her children. Nights she spent in a twin-size bed with two other inmates, afraid to sleep. “There was no liberty—in every sense,” she said. She closed her eyes and shook her head. “I suffered a lot.”
On paper, Ecuador’s abortion laws are straightforward: anyone who intentionally terminates a pregnancy, her own or someone else’s, is criminally liable, with exceptions in specific cases. But unlike laws, bodies are messy, and sometimes mysterious even to their own inhabitants. From a medical standpoint, an abortion caused by medication often looks like a spontaneous miscarriage. (In Spanish, the word for both is the same: un aborto.) The abortion ban, on the other hand, works like a trick mirror, through which miscarriages, stillbirths, and other obstetric emergencies look suspicious, like evidence of a crime.
One weekend last fall, very early in the morning, Priscilla Enriquez heard her neighbor screaming. Enriquez knew the woman lived alone with two young children, so she hurried over. She found the woman in the bathroom, covered in blood, with a stillborn fetus still attached by the umbilical cord to the placenta inside her. Enriquez called a taxi and directed it to the maternity hospital, a rust-pink building in central Quito. In the emergency department, she heard a doctor ask the woman if she’d had any prenatal exams; the woman, who was poor and worked in a restaurant, said she had not. “The doctor judged her right away,” said Enriquez. According to Enriquez, the police arrived with the intention of investigating the woman for homicide due to negligence. Enriquez, who had heard of Surkuna on Facebook, called its help line. Lawyers arrived quickly and were able to keep the case from moving forward.
Some women who’ve been prosecuted for abortion or murder after having miscarriages didn’t even know they were pregnant. In one case described by Vera, a woman was raped at the age of 18. It was her first sexual experience, and she told no one. Some months later, while she was doing chores, she began to bleed, and the next morning delivered a stillborn fetus at home. Paramedics called by her family found the body in the bathroom. She was charged with manslaughter on account of negligence—for failing to take care of a pregnancy that she didn’t know she had.
In that case and in others, prosecutors relied on a discredited forensic method to support a murder charge: the hydrostatic, or lung-float, test, a 17th-century procedure in which lung tissue from the fetus is placed in water. Floating is considered evidence that the baby was born alive and must have died—or been killed—after birth. But a number of factors can cause the lungs to float, and the test cannot distinguish between a killing and a death due to other causes. As early as the 1660s, according to historian G.K. Behlmer, Europeans “concluded that it was impossible to infer live birth from floating lungs.” A more recent forensic textbook calls such tests “black.
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