On September 13, 2007, Nicaraguas National Assembly voted in favor of a new penal code that maintains a controversial blanket ban on abortion, which was first imposed during the countrys hotly contested presidential campaign in November 2006. The new penal code specifies prison sentences of one to three years for the person who performs the abortion, and one to two years for the woman who procures it.3It provides no exceptions, even when the pregnant womans life is at stake.
Both its original enactment and the vote in September 2007 have been widely attributed to political parties wishing to ensure and maintain support from the Roman Catholic Church and the Evangelical Church.4 Over the past year Nicaraguas ban on abortion has been criticized openly as harmful and contrary to the countrys human rights obligations by various United Nations entities,5the European Commission, the Inter-American Commission on Human Rights, and several bilateral donors and donor agencies.6
Up until November 2006 Nicaraguas Penal Codein force since 1893had criminalized all abortion, except for those carried out for therapeutic reasons.7 Yet access to legal therapeutic abortion became increasingly restricted: Nicaraguas Health Ministry estimates that formerly 10 percent of all pregnancies ended in an abortion or miscarriage, totaling approximately 7,500 abortions and miscarriages in 2005,8 yet in that year only six abortions were classified as therapeutic or medical.9
In 1989, to facilitate the implementation of the penal code provisions allowing therapeutic abortion, the Health Ministry mandated all hospitals to set up a standing committeemade up of social workers and medical doctorsto determine whether women or girls with crisis pregnancies were eligible for a legal abortion.10 Scholars report that only one such committee was ever set up at the Bertha Calderón hospital, the largest maternity care facility in the country.11 Following the election of conservative President Violeta Chamorro in 1990, the newly instated conservative director of the hospital shut down the committee and access to therapeutic abortion became noticeably limited.
A study undertaken by the Nicaraguan Association of Obstetricians and Gynecologists (SONIGOB), among others, reported a drastic drop in requests for therapeutic abortion from 368 in 1989 to only 2 in 1999 at this hospital.12 Since the therapeutic abortion committee at Bertha Calderón was dissolved in 1990, it became more difficult for women to get access to therapeutic abortion services, though still not impossible.
Medical doctors who served on the committee told Human Rights Watch that the blanket ban took away the last possibility for providing necessary care:
In January 2007 a number of civil society groups working on human and womens rights filed petitions with Nicaraguas Supreme Court to declare the new law unconstitutional.14The Court had still not ruled on these petitions when the National Assembly ratified the blanket ban on abortion by adopting the new Penal Code in September 2007.15
Human Rights Watch was not able to obtain any official information on prosecutions of providers or women for the crime of abortion. However, none of the doctors and public officials we interviewed could recollect one single case, and, judging by experience from other countries, it is likely that prosecutions are rare.
3 Penal Code of the Republic of Nicaragua, as amended on September 13, 2007, art. 143.
4 This sentiment was shared unanimously by governmental and nongovernmental sources alike. Human Rights Watch interviews, Managua, August 12-16, 2007.
5 United Nations Population Fund (UNFPA), the United Nations Childrens Fund, and the United Nations special rapporteur on the right to health.
6 The United Kingdoms Department for International Development (DFID), and representatives from the embassies of Italy, France, Sweden, Canada, the Netherlands, Denmark, and Norway.
7 See footnote 2.
8 Pan-American Health Organization (PAHO), Derogation of Therapeutic Abortion in Nicaragua: Impact on Health (Organización Panamericana de la Salud (OPS), Derogación del Aborto Terapeutico en Nicaragua: Impacto en Salud), (Managua, Nicaragua: PAHO 2007), p. 14, citing Nicaraguas Health Ministry.
9 The remaining abortions and miscarriages treated in the public health system in 2005 were: 397 ectopic pregnancies (not officially classified as abortion), 232 cases of molar pregnancies, 1183 other abnormal pregnancies, 211 miscarriages, 49 other abortions, and over 5,400 nonclassified abortions, some of which might have originally been induced illegally. Ibid.
10 Lois Wessel, Reproductive Rights in Nicaragua: From the Sandinistas to the Government of Violeta Chamorro, Feminist Studies, Vol. 17 (1991), Kingwood College, p. 6.
11 Ibid, p. 4.
12 H.L. McNaughton, M.M. Blandón, and L. Altamirano, Should Therapeutic Abortion be Legal in Nicaragua: The Response of Nicaraguan Obstetrician-Gynaecologists, Reproductive Health Matters, vol. 10.19, May 2002, p. 112.
13 Human Rights Watch interview with medical doctor (name withheld), Managua, August 14, 2007.
14 Petitions of Unconstitutionality of Law No. 603, January 2007, on file with Human Rights Watch.
15 The concrete penal code provision revocation of which was sought in the petitions (law no 603) was replaced by a new penal code in September 2007. Therefore, though the relevant provisions are the same, the petitions filed with the Supreme Court are no longer valid and will have to be resubmitted to be ruled upon.