Your uterus may be used against you

El Salvador today.

Positions on the strengthened ban essentially split along party lines, at least at first. "The majority of our leadership came out in opposition," Lorena Peña, an FMLN representative in the Assembly, told me. But the FMLN held only a minority of the seats in the 84-member Assembly, and they were unable to stop the bill. The proposal to ban all abortions passed the Assembly in 1997 and became the law of the country in April 1998.

"But that was not enough," de Cardenal later wrote in an article recounting the victory. In 1997, her foundation also proposed a constitutional amendment that would recognize the government's duty to protect life from the time of conception.

A proposed constitutional amendment in El Salvador has to pass two important votes. It must be accepted by a majority in one session of the Assembly and then, after a new election, ratified by a two-thirds vote in the next Assembly. During the first vote, in 1997, FMLN legislators stood against the amendment, but they were outvoted, and the amendment passed the first round.

In January 1999, as the issue headed toward the second vote in the Assembly, Pope John Paul II visited Latin America. "The church must proclaim the Gospel of life and speak out with prophetic force against the culture of death," he declared in Mexico City."May the continent of hope also be the continent of life!" De Cardenal says that the pope's visit re-energized supporters of the constitutional ban. As the vote neared, her group rolled out a series of radio ads in favor of the amendment and presented legislators with a petition of more than 500,000 signatures. At one demonstration, members of the group sprinkled the National Assembly with holy water. To punctuate her campaign, de Cardenal arranged to have two pregnant women come to the Assembly and have ultrasounds publicly performed on their fetuses.

The leadership of the FMLN, afraid that the party would be trounced in the coming elections if they were on the record as opposing the amendment, freed its deputies from their obligation to follow the party's position and urged them to vote with their consciences. When the final vote was taken, the amendment passed overwhelmingly.

This story about El Salvador's complete banning of abortion procedures -- even in the case of the mother's health -- should stand as a warning to Democrats and women at large in this country. It's why we are -- and should be -- made so uncomfortable when the party leadership courts anti-choice politicians like Bob Casey Jr. in Pennsylvania. Because the anti-choice movement has a nasty little riddle they don't want to bring up -- when abortion is made illegal, what about the women who choose to have one?

When the woman is first detained, the form of custody can vary. Wandee Mira, an obstetrician at a hospital in San Salvador, told me that she had seen "a young girl handcuffed to her hospital bed with a police officer standing outside the door." In El Salvador, a person accused of a major crime is typically held in jail in "preventative detention" until the trial begins. Tópez, who said she had prosecuted perhaps 10 or 15 abortion cases in the last eight years, said that she took the severity of the case into account and sometimes argued for "substitutive measures instead of jail," like house arrest, while the accused was awaiting trial. My impression was that Tópez was emphasizing such relative leniencies as house arrest instead of detention, as well as suspended sentences for women who report the abortionist, because, like most people, she was uncomfortable with the inevitable logic that insists upon making a woman who has had an abortion into a criminal. Even Regina de Cardenal, whose group was instrumental in passing the ban, could not quite square the circle.

"I believe the woman is a victim," de Cardenal told me. "The criminals are the people who perform the abortions." When pressed about the fact that the law she helped pass does treat the woman as a criminal, she said: "Yes, it's part of the law of our country. Because the woman has murdered her baby — and that's why she is sent to jail. But I believe that the woman who is sent to jail remains a victim of the abortion doctor, the abortionist, who knows exactly what he is doing."

In the United States, this conundrum is only beginning to emerge, as it did on "Meet the Press" in October 2004, when Tim Russert, the host, asked Jim DeMint, a South Carolina Republican representative then in the middle of what turned out to be a successful campaign for the U.S. Senate, to explain his position in favor of a total ban on all abortion procedures. DeMint was reluctant to answer Russert's repeated question: Would you prosecute a woman who had an abortion? DeMint said he thought Congress should outlaw all abortions first and worry about the fallout later. "We've got to make laws first that protect life," he said. "How those laws are shaped are going to be a long debate."

Russert refused to leave the congressman alone. "Who would you prosecute?" he persisted.

Finally DeMint blurted, "You know, I can't come up with all the laws as we're sitting right here, but the question is, Are we going to protect human life with our laws?"

In El Salvador, the law is clear: the woman is a felon and must be prosecuted. According to Tópez, after a report comes in from a doctor or a hospital that a woman has arrived who is suspected of having had an abortion, and after the police are dispatched, investigators start procuring evidence of the crime. In that first stage, Tópez has 72 hours to make the case to a justice of the peace that there should be a further investigation. If enough evidence is collected, she presents the case before a magistrate to get authorization for a full criminal trial before a judge.

During the first round of investigations, police officers interview the woman's family and friends. "The collecting of evidence usually takes place where the events transpired — by visiting the home or by speaking with the doctor at the hospital," Tópez said. In some cases, the police also interrogate people who work with the woman. Tópez added that that didn't happen very often because, she said, "these are women who don't work outside the home." (Indeed, the evidence suggests that the ban in El Salvador disproportionately affects poor women. The researchers who conducted the Journal of Public Health study found that common occupations listed for women charged with abortion-related crimes were homemaker, student, housekeeper and market vendor. The earlier study by the Center for Reproductive Rights found that the majority were domestic servants, followed by factory workers, ticket takers on buses, housewives, saleswomen and messengers.)

As they do in any investigation, the police collect evidence by interviewing everyone who knows the accused and by seizing her medical records. But they must also visit the scene of the crime, which, following the logic of the law, often means the woman's vagina.

"Yes, we sometimes call doctors from the Forensic Institute to do a pelvic exam," Tópez said, referring to the nation's main forensic lab, "and we ask them to document lacerations or any evidence such as cuts or a perforated uterus." In other words, if the suspicions of the patient's doctor are not conclusive enough, then in that initial 72-hour period, a forensic doctor can legally conduct a separate search of the crime scene. Tópez said, however, that vaginal searches can take place only with "a judge's permission." Tópez frequently turned the pages of a thick law book she kept at hand. "The prosecutor can order a medical exam on a woman, because that's within the prosecutor's authority," she said.

In the event that the woman's illegal abortion went badly and the doctors have to perform a hysterectomy, then the uterus is sent to the Forensic Institute, where the government's doctors analyze it and retain custody of her uterus as evidence against her.

I guess it all comes down to whose human life we're protecting.