MANAGUA – The shocking case of a pre-adolescent rape victim having to undergo an “illegal therapeutic abortion” last week has revived the debate on Nicaragua's draconian ban on life-saving medical interventions to save a mother's life.

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Doctors at the state women's hospital last week performed an emergency medical procedure to terminate the pregnancy and save the life of “Marianita,” a 12-year-old incest victim from the rural north-Atlantic mining town of Siuna. Marianita was raped and impregnated six months ago by her father, who then committed suicide after his crime was made known. The young girl was subsequently abandoned by her mother, who was reportedly distraught over the turn of events and blamed her daughter.

Marianita was brought by neighbors to Managua and checked into the state-run Hospital Bertha Calderón, where doctors were presented with the difficult dilemma of breaking the law by performing a therapeutic abortion, or allowing her to die by not. Marianita, doctors agreed, was not expected to survive the full term of her pregnancy due to a series of health complications.

Rights groups note that Marianita would hav e been eligible for a therapeutic abortion under Nicaragua's old Penal Code, which has been on the books for more than a century. A therapeutic abortion is the termination of pregnancy for serious health reasons, rape or incest before the fetus is capable of extra-uterine life, usually within the first 22 weeks of pregnancy. Marianita was operated on in week 24, after spending 15 days in the hospital; doctors, whose identities are being protected by the hospital, told the daily El Nuevo Diario that when Marianita first entered the hospital they felt “their hands were tied” by the law and were afraid to act initially.

The law allowing therapeutic abortion here was overturned by the National Assembly in 2006, when the Catholic Church used the elections as political leverage to get politicians to outlaw abortion in exchange for votes. Lawmakers then ratified their pact with the church last year by outlawing therapeutic abortion in the new Penal Code, which enters into force July 9.

Despite the ban, doctors decided to operate on Marianita on June 25, aborting the fetus and stabilizing the girl, who is reportedly recovering in the hospital. Though it wasn't the first illegal abortion conducted since the ban entered into effect, it may be the first one performed by state doctors employed by the Ministry of Health (MINSA) – which could potentially result in the government getting accused of breaking its own law.

“The MINSA doctors know that therapeutic abortion is necessary for technical and medical reasons, despite the government's pact with the church,” said Fatima Million, coordinator of the Women's Network against Violence.

What comes next is not yet clear.

“This case will be transcendental and could set a judicial precedent,” Dr. Oscar Flores, adviser to the Nicaraguan Society of Gynecologists and Obstetricians, told The Nica Times this week.

Flores, who lobbied strongly against the criminalization of therapeutic abortion, said the medical procedure performed was an “illegal abortion,” and if the government is serious about upholding the new law, it will have to prosecute the case. The other option, he said, would be to ignore the rule of law and “turn a blind eye” on the case, letting it fade away quietly.

Either way, he said, the case will determine how future abortion cases are handled.

If the case gets prosecuted and goes to court, the judge will have to decide whether the doctors did the right thing by defending the young girl's right to life, or did the wrong thing by performing a therapeutic abortion. Flores said defense lawyers could make the argument that performing the medical procedure was a legitimate act in defense of Marianita's life – “like shooting an intruder who enters your home,” which is justifiable.

Yet if a judge were to eventually find the doctors guilty, they – along with the director of the hospital and everyone else involved – could face up to five years in jail. In that case, Marianita would be spared prison because she is a minor.

Flores said the problem with letting a judge decide whether doctors acted correctly after the fact is that it makes the abortion issue a legal and judicial procedure, rather than one that is dictated by medical norms and technical controls.

Ineffective Legislation

The 2006 ban on therapeutic abortions made the procedure illegal, but it hasn't put a stop to it, according to a new study conducted by doctors at the Hospital Escuela in the city of León.

Doctors at the hospital asked women who showed signs of having an abortion to participate in a recent survey, on the condition of anonymity. Of the 150 who agreed, 35 percent admitted that their abortion had been induced, either through taking medicine, excessive physical exertion or through introducing a foreign object into their bodies.

Of the women who admitted they had induced an abortion, 100 percent said they had done so for economic reasons, among other motivating factors.

A separate analysis of official health records by reproductive rights organization Ipas Centroamerica, revealed a 14 percent increase in suicides by pregnant women during the first year of the abortion ban.

Karen Padilla, the doctor who conducted the study, said the evidence indicates that many of the women accidentally killed themselves by overdosing on drugs that might have been taken with the intention of inducing an abortion.

While the official number of maternal deaths didn't increase last year, some statistics – 20 percent of the women died in a health clinic, while another 20 percent were adolescents – suggest that many lives could have been saved if therapeutic abortion had been an option.

Padilla said spotty medical records make it impossible to calculate an exact number of how many lives could have been saved by abortion. But what's clear, she said, is that the 87 women who died maternal deaths last year left behind 305 orphaned children.

Ipas also conducted an analysis of Nicaragua's two leading daily newspapers to determine what type of coverage the abortion issue received during the first year of its ban. The survey found that, contrary to the notion that most Nicaraguans are against the idea of therapeutic abortion, the two leading dailies wrote most of their articles and opinion pieces in favor of therapeutic abortion, especially the more left-leaning El Nuevo Diario, which published more than 60 percent of the 338 articles printed on the issue last year.

Yet the media study also revealed that there's still a general confusion over what therapeutic abortion is; only 10 percent of the articles published included a correct definition of the medical procedure, according to the Ipas study.

“The print media has played a very important role in forming public opinion despite the confusing and polarized debate on the issue of therapeutic abortion,” said Cecilia Espinoza, who headed the media analysis for Ipas. “However, the study reveals that the population is not receiving clear definitions, suggesting that we need to work closer with the media to help disseminate more precise information.”

New Opportunity

For Fatima Million, of the Women's Network against Violence, the recent case of Marianita presents another opportunity to rectify the mistake of outlawing therapeutic abortion.

“This is not a moral issue, but a technical and medical necessity,” she said.

Million noted that the Supreme Court has still not ruled on any of the 67 motions of unconstitutionally filed more than a year ago against the therapeutic-abortion ban. But once the new penal code takes effect next week, activists will have 90 days to challenge the issue again.

“After July 9, we'll file a new set of legal challenges all over again,” she said.