Though in place for less than a year when Human Rights Watch visited Nicaragua in August 2007, the harmful impact on women of the ban on therapeutic abortion was already evident. While no doctors have been prosecuted for the crime of abortion, as far as we know, the mere possibility of facing criminal charges for providing life-saving health services has had a deadly effect.
The inclusion of therapeutic abortions in the ban on abortion is designed to eliminate legal access to life- or health-saving abortion services. As such, whether enforced or not, it directly contravenes international human rights standards on the right to life, the right to health, the right to non-discrimination, and a number of other established human rights.17
It is impossible to ascertain how many women the blanket ban has prevented from accessing safe therapeutic abortion services and with what effect. Nicaraguas Health Ministry officials told Human Rights Watch that they did not have any official documentation of the effects of the blanket ban and no plans for gathering such documentation.18
A medical doctor at a large public hospital in Managua, however, testified to one case:
Indeed, it is virtually inevitable that the law will lead to preventable maternal deaths, for two main reasons. First, it is not possible to foresee and prevent all pregnancies that might threaten the life or health of the pregnant woman, even in countries with universal healthcare and full access to modern contraceptive methods. That is, the need for therapeutic abortion cannot be completely eliminated. Second, it is possible to foresee the impact of specific pathologies on a pregnant womans health, or on the healthy development of her pregnancy. That is, the death or severe health consequence following the denial of a therapeutic abortion is in many cases foreseeable and preventable.20
It is also inevitable that some women who could have had access to therapeutic abortion under the previous law now find themselves forced to seek illegaland potentially unsafecare in order to save their lives and health. This was the case of 30-year-old Mariana S. and 20-year-old Sofía M.
Mariana S. has a permanent health condition and needs daily medication. When she found herself pregnant, she suspended the use of the medication, as recommended by her pharmacist. She told Human Rights Watch of the rapid deterioration in her health: Right after I got pregnant I started having these horrible health problems. I got really sick, it really affected me. I didnt feel good just walking on the street, I almost passed out. I spent like five days without sleeping feeling horrible and in pain.21
A single mother of two, Mariana S. decided that she had to terminate the pregnancy in order to be able to care for her children. She was aware of the blanket ban on abortion: I was very afraid. It was very traumatic not to be able to talk about it, because it is a crime.22 After attempting to induce an abortion with injections and pills, Mariana S. found a clinic she could afford and fortunately had no complications from the intervention.
She said of the newly imposed ban, I think they would have given me [an abortion before the ban] because of the [permanent health] problem I have They should decriminalize therapeutic abortion [again] because they would save more lives like that. In my case, for example, the abortion saved both me and the two children I already have.23
Sofía M., a 20-year-old mental health patient, had suffered through the same ordeal. Sofía M.s doctor told Human Rights Watch she had been diagnosed years earlier with a mental imbalance that causes her to be violent whenever she is not medicated.24 In March 2007, when she discovered she was pregnant, Sofía M. knew she could not carry the pregnancy to term. She said, I dont want to kill. But in my case, I couldnt have the child. It would not be born healthy because I cant stop taking the medicine. If I cant even take care of me, how would I take care of a child?25
Sofía M. and her mother went from one clinic to another, but no one wanted to carry out the abortion because of the law: They said they couldnt do it because it is illegal.26 She finally found a clandestine provider through a friend and told Human Rights Watch of the added anxiety in having to procure illegal services: I was afraid; I did not know what it was going to be like.27
In most cases the blanket criminalization of abortion, including therapeutic abortion, has a restrictive effect on access to reproductive healthcare services as well as to abortion.28 As seen in various countries, this chilling effect is often attributed, on the one hand, to incomplete, inaccurate, and inaccessible information about the law, and, on the other, to public officials fearing retribution if they act outside the law. Nicaragua is no exception.
The effect [of the ban] has been on the medical personnel,29said Dr. Jorge Orochena from the Health Ministry to Human Rights Watch. There have been situations that should have been treated [but] out of fear they havent been treated fast.30 This sense was confirmed by a medical doctor from a low-cost clinic close to a major hospital in Managua. She commented to Human Rights Watch, The day they passed the law [criminalizing all abortion] people come to my clinic from the hospital, bleeding. They start coming, and they say, In the hospital they tell me to come to your clinic, that you can treat me, that they cant. Many of those cases didnt even have to do with abortion.31
In an attempt to mitigate the consequences of the ban, the Nicaraguan Health Ministry in December 2006 issued a number of mandatory protocols for the provision of emergency obstetric care. These guidelines cover most if not all obstetric emergencies, including ectopic pregnancies and post-abortion care.32
If fully implemented, it is possible that these guidelines could overcome a good part of the negative consequences of the blanket ban. Human Rights Watchs research, however, suggests that the guidelines are not followed at times. Moreover, our interviews with patients, doctors, and Health Ministry officials alike suggest that when the guidelines are ignored or their implementation is delayed, this often happens as a direct result of the blanket ban and resulting fear of prosecution.
One Health Ministry official who spoke on the condition of anonymity said, In a national reference hospital the [OB/GYN] specialists told us clearly that if there was a case [of obstetric emergency], they wouldnt treat it. They interpret [the guidelines] as they see fit so as not to get involved.33The same official acknowledged that not all medical personnel have reacted in this way: If there had been a complete denial of services to women then, at this point, we would have seen a real surge in maternal deaths [and we havent].34
Meanwhile, the Health Ministry does not monitor the full implementation of the protocols, does not systematize complaints received for the delay or denial of care, and so far has not studied the impact of the law on the lives and health of women.35 The Nicaraguan government also has not attempted to address the prevailing misperceptions in the general public regarding the legality of post-abortion care (regardless of whether the abortion was induced or a miscarriage), and does not appear to properly investigate and sanction all medical personnel who cause unnecessary delay of or deny women access to legally available care.
But even without such official information and study, it is clear that the lack of or delay in access to emergency obstetric care could potentially affect hundreds of women and girls every year in Nicaragua. The Pan-American Health Organization estimates that one woman per day suffers from an ectopic pregnancy in Nicaragua,36 and every two days a woman suffers a miscarriage from a molar pregnancy,37 and another woman a miscarriage from cancer-related pregnancy complications.38 All of these cases often generate the need for emergency obstetric care, in most cases to treat incomplete miscarriages,39 resulting infections, and/or septic shock,40 and, in the case of ectopic pregnancies, to surgically remove the fertilized ovum.41 Moreover, Nicaraguan health protocols mandate comprehensive and immediate treatment for all such emergencies.
The case of 24-year-old Olga María Reyes illustrates how doctors fear of being perceived to have provided an abortion can contribute to deadly delay in access to emergency obstetric care. Reyes died in a public hospital in León in April 2007 when she was six to eight weeks pregnant, due to the delayed removal of an ectopic pregnancy, according to the doctors who spoke to her family. When Reyes finally presented the public hospital in León with an ultrasound result from a private clinic that diagnosed her with a ruptured ectopic pregnancy, she was left unattended for hours despite the fact that Health Ministry regulations require immediate attention to ectopic pregnancies. Reyes was eventually operated upon, but too late. She died of cerebral arrest due to excessive hemorrhaging.42
It is worth clarifying that current Nicaraguan law does not prohibit the interruption of an ectopic pregnancy. This is because such an intervention is not considered a therapeutic abortion under the International Classification of Diseases and Related Health Problems, notably because it, per definition, involves the removal of a nonviable fertilized ovum.43
Angela M.s 22-year-old daughter is another case in point. Her pregnancy-related hemorrhaging was left untreated for days at a public hospital in Managua, despite the obligation, even under Nicaraguan law and guidelines, to treat such life-threatening emergencies. In November 2006, only days after the blanket ban on abortion was implemented, Angela M. told Human Rights Watch of the pronounced lack of attention: She was bleeding. Thats why I took her to the emergency room but the doctors said that she didnt have anything. Then she felt worse [with fever and hemorrhaging] and on Tuesday they admitted her. They put her on an IV and her blood pressure was low. She said. Mami, they are not treating me. They didnt treat at all, nothing.44
From comments made by the doctors at the time, Angela M. believes her daughter was left untreated because doctors were reluctant to treat a pregnancy-related emergency for fear that they might be accused of providing therapeutic abortion. Angela M.s daughter was finally transferred to another public hospital in Managua, but too late: She died of cardiac arrest. She was all purple, unrecognizable. It was like it wasnt my daughter at all.45
Medical doctors Human Rights Watch spoke to recounted many other cases of obstetric emergencies that should have been treated, even with the ban in place, but where patients where left to fend for themselves. One 17-year-old girl came to my clinic, said one doctor. Her family came to ask me for help. In the hospital they had said they wouldnt treat the hemorrhaging because of the law. It was a 12-week pregnancy, bleeding. I examined her, and it was an incomplete abortion, with bleeding.46
In fact, regardless of the blanket ban on induced abortion, Nicaraguas official guidelines on post-abortion care require public hospitals to provide comprehensive health care in cases such as Angela M.s daughter and the 17-year-old girl who was turned away from the hospital. In cases of incomplete abortions or miscarriages in pregnancies of 12 weeks and less, the mandated treatment includes the evacuation of the uterus as soon as possible, that is, the completion of the abortion or miscarriage.47In pregnancies of more than 12 weeks, medical personnel are required to procure the spontaneous expulsion of the product of conception and subsequently clean the uterine cavity.48
The potentially most wide-ranging effect of the blanket ban on abortionalbeit the hardest to measureis a surge in fear of seeking treatment for pregnancy-related complications, in particular hemorrhaging, because woman and girls are afraid they will be accused of having induced an abortion. All women and family members Human Rights Watch interviewed expressed heightened levels of anxiety in this regard, often with reference to the massive media coverage of this issue.
While Nicaraguas government has an obligation to protect freedom of speech and press, it has a corresponding obligation to ensure access to accurate and complete information concerning prevailing health problems, their prevention, and their control.49 Where incomplete or inaccurate health information is readily available in the public spherefor example because it is provided by groups opposed to the decriminalization of therapeutic abortion in legitimate exercise of their right to freedom of expressionthe state may have a responsibility to launch an affirmative public health information campaign specifically aimed at correcting the misperceptions. This would seem to be particularly pertinent with regard to potentially life-saving health services such as post-abortion care, which, in the words of the Nicaraguan Health Ministry, is designed to prevent those complications that lead to death and maiming of the pregnant woman.50
16 Human Rights Watch interview with United Nations official (name withheld), Managua, August 15, 2007.
17 For a full analysis of international human rights law and abortion within the context of Nicaragua, see Human Rights Watch, Amicus Curiae Brief on the Abortion-Related Provisions of Law 603 of 2006 (Penal Code), presented by Human Rights Watch before the Supreme Court of Justice, August 2007, http://hrw.org/pub/amicusbriefs/nicaragua0807web.pdf.
18 Human Rights Watch interview with Health Ministry employee (name withheld), Managua, August 13, 2007; and with Dr. Jorge Orochena, director for quality control, Health Ministry, Managua, August 14, 2007.
19 Human Rights Watch interview with Dr. Francisco Del Palacio, deputy educational director at Alemán Hospital, Managua, August 16, 2007.
20 Certain medical conditions predict high maternal risk (e.g. diabetes, cardiac conditions, and poorly controlled hypertension) . Other conditions that imperil maternal health and might require termination of pregnancy for maternal reasons develop during pregnancy (e.g. eclampsia, or pre-eclampsia not responding to treatment, hellp syndrome and others). See American Medical Association, Jerrold B. Leikin and Martin S. Lipsky, eds., Complete Medical Encyclopedia (New York, NY: Random House Reference, 2003), pp. 496, 1011, 1015.
21 Human Rights Watch interview with Mariana S. (pseudonym), Managua, August 16, 2007.
22 Human Rights Watch interview with Mariana S. (pseudonym), Managua, August 16, 2007.
23 Human Rights Watch interview with Mariana S. (pseudonym), Managua, August 16, 2007.
24 Human Rights Watch interview with medical doctor (name withheld), Managua, August 16, 2007.
25 Human Rights Watch interview with Sofia M. (pseudonym), Managua, August 16, 2007.
26 Human Rights Watch interview with Sofia M. (pseudonym), Managua, August 16, 2007.
27 Human Rights Watch interview with Sofia M. (pseudonym), Managua, August 16, 2007.
28 For the link between the criminalization of abortion and access to post-abortion care, see, for example, Human Rights Watch, Decisions Denied, Access to Contraceptives and Abortion in Argentina, June 2005, vol. 17, no.1 (B). See also generally Human Rights Watch, The Second Assault: Obstructing Access to Legal Abortion after Rape in Mexico, March 2006, vol. 18, no. (1)B, http://hrw.org/reports/2006/mexico0306/.
29 Human Rights Watch interview with Dr. Jorge Orochena, Managua, August 14, 2007.
30 Human Rights Watch interview with Dr. Jorge Orochena, Managua, August 14, 2007.
31 Human Rights Watch interview with medical doctor (name withheld), Managua, August 14, 2007.
32 Health Ministry, Norms and Protocols for Treatment of Obstetric Emergencies (Normas y Protocolos para la Atención del as Complicaciones Obstétricas), Managua, December 2006.
33 Human Rights Watch interview with Health Ministry official (name withheld), Managua, August 13, 2007.
34 Human Rights Watch interview with Health Ministry official (name withheld), Managua, August 13, 2007.
35 Human Rights Watch interview with Dr. Jorge Orochena, Managua, August 14, 2007.
36 Ectopic pregnancy is a condition in which a fertilized egg implants outside the uterus . The greatest risk to the woman is when an ectopic pregnancy ruptures, and severe bleeding occurs . A woman with a ruptured ectopic pregnancy needs immediate surgery to remove the embryo and repair or remove the damaged tissues of the fallopian tube. American Medical Association, Jerrold B. Leikin and Martin S. Lipsky, eds., Complete Medical Encyclopedia (New York, NY: Random House Reference, 2003), p. 497.
37 Molar pregnancy is an abnormal pregnancy that probably results from the fertilization of a so-called empty egg, an egg without chromosomes. In this condition, the fertilized egg degenerates, and the placenta grows into a mass of tissue resembling a cluster of grapes. Ibid, p. 855.
38 PAHO, Derogation of Therapeutic Abortion in Nicaragua: Impact on Health, p. 14.
39 An incomplete miscarriage occurs when some of the fetal tissue remains in the uterus after a miscarriage and must be removed by a doctor. Leikin and Lipsky, eds., Complete Medical Encyclopedia, p. 850-851.
40 Septic shock is a life-threatening condition that occurs when bacterial infections get into the blood, multiply rapidly, and produce bacterial toxins. The condition requires immediate medical treatment, including intravenous antibiotic drugs and medical procedures to maintain blood pressure and blood volume. New born, older people and pregnant women are also more susceptible to septic shock. Ibid, p. 1104.
41 In some cases an ectopic pregnancy terminates in a miscarriage. In other cases there is hemorrhaging and shock, which requires a speedy surgical intervention to stop the loss of blood and save the womans life. See PAHO, Derogation of Therapeutic Abortion in Nicaragua: Impact on Health, p. 14.
42 Human Rights Watch and Ipas joint interview with Claudia Pérez, Nagarote, August 15, 2007; and with José Agustín Pérez, Nagarote, August 15, 2007. Reyess medical record corroborates this account. On file with Human Rights Watch.
43 See International Classification of Diseases and Related Health Problems, http://www.who.int/classifications/apps/icd/icd10online/ (accessed September 18, 2007), Chapter XV.
44 Human Rights Watch and Ipas joint interview with Angela M. (pseudonym), Managua, August 14, 2007.
46 Human Rights Watch interview (name withheld), Managua, August 13, 2007
47 Protocol for Post-Abortion Care and Its Different Clinical Stages (Protocolo de Atención Postaborto y sus Diferentes Formas Clínicas), in Health Ministry, Norms and Protocols for Treatment of Obstetric Emergencies, p. 111.
49 Committee on Economic, Social and Cultural Rights, The right to the highest attainable standard of health (General Comments), General Comment 14, August 11, 2000, U.N. Doc. E/C.12/2000/4, paras. 12(b), 16 and note 8.
50 Protocol for Post-Abortion Care and Its Different Clinical Stages in Health Ministry, Norms and Protocols for Treatment of Obstetric Emergencies, p. 103.