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A young Salvadoran woman accused of abortion faces retrial, hefty sentence

This is the first retrial of an abortion case in a country that pursues legal cases against women who've experienced miscarriages and obstetric emergencies.
Image: Women protest outside a courtroom demanding the release of women prisoners who are serving sentences for having an abortion in San Salvador, El Salvador, on Dec. 13, 2017.
Women protest outside a courtroom demanding the release of women prisoners who are serving sentences for having an abortion in San Salvador, El Salvador, on Dec. 13, 2017.Salvador Melendez / AP file

A young woman who birthed a baby into a toilet in El Salvador faces a second trial for murder Monday in a case that has drawn international attention because of the country's highly restrictive abortion laws.

Evelyn Beatriz Hernández had already served 33 months of her 30-year sentence when the Supreme Court overturned the ruling against her in February and ordered a new trial, with a new judge.

Women's rights advocates hope the new government of President Nayib Bukele, who took office in June, will soften the country's stance on women's reproductive rights — starting with an acquittal for Hernández. Dozens of women have been jailed in El Salvador with similar convictions.

"What Evelyn is living is the nightmare of many women in El Salvador," said her lawyer, Elizabeth Deras.

Hernández says she had no idea she was pregnant, as a result of a rape. She recalls making her way to an outhouse in a poor, rural community one day in 2016 with strong abdominal pains. She squatted to defecate, she says, and the baby must have slid to the bottom of the septic tank. Evelyn's mother says she found her daughter passed out next to the makeshift toilet and hailed a pickup truck to transport her to a hospital 30 minutes away.

The fetus was 32 weeks old — nearly full term — and forensic examiners weren't able to determine whether the death occurred in the womb, or in the feces. The cause of death remains unclear.

Both women insist they didn't know there was a baby in the septic tank.

Prosecutors don't believe them, though the Supreme Court accepted defense lawyers' argument that no proof had been presented that Hernández caused the baby's death.

The Associated Press only identifies victims of alleged sexual assault by name if the victims themselves go public with the allegations.

The trial of Hernández, 21, was set to begin Monday in what looks to be the first test for women's reproductive rights under Bukele, who is young and has expressed disdain for all forms of discrimination.

Bukele has said he believes abortion is only acceptable when the mother's life is at risk but that he's "completely against" criminalizing women who have miscarriages.

"If a poor woman has a miscarriage, she's immediately suspected of having had an abortion," Bukele said in 2018. "We can't assume guilt when what a woman needs is immediate assistance."

Women who turn up at public hospitals following a miscarriage are sometimes accused of having killed the fetus.

Recent public opinion polls in El Salvador show broad support for more lenient abortion laws, such as allowing medical interventions when a mother's life is in danger or the fetus is not viable. However, many Salvadorans still believe rape victims should be obligated to carry out their pregnancies.

An intervention on behalf of Hernández would show that Bukele is "interested in the lives of women," said Deras. Morena Herrera, who fights for women's reproductive rights in El Salvador, also urged Bukele to raise his voice "in favor of Evelyn" so that the young woman can get on with her life.

Bukele has not spoken publicly about the Hernández case.

El Salvador is one of three countries in Central America with total bans on abortion, even in cases of rape and incest, or when the mother's life is in danger.

Salvadoran law dictates up to eight years in prison for women who intentionally terminate a pregnancy, and for medical practitioners who assist them. However, aggressive prosecutors frequently upgrade the charges to aggravated homicide, which carries a maximum 40-year sentence.

The Citizen Group for the Decriminalization of Abortion in El Salvador has tracked 146 prosecutions against women for abortion since 2014. Of those cases, 60 women were sentenced to jail, with 24 convicted of aggravated homicide. Some insist they suffered miscarriages and did not intentionally terminate their pregnancies.

The punishments often fall on poor, young women and victims of rape.

El Salvador is a deeply religious country, with 80% identifying as either Catholic or Evangelical Christian.

But it's also a country plagued by gang violence and macho attitudes about the roles of women. Every year, an estimated 25,000 women are impregnated after rapes in the country of just over 6 million inhabitants. It's believed that thousands of clandestine abortions are carried out each year in El Salvador.