As the U.S. waits for the Supreme Court to issue a ruling that could walk back abortion access protections established decades ago, a young woman who claims she gave birth to a stillborn is facing criminal charges in Mexico.
She is one of many women in Latin America who have been accused of killing their newborns, according to a Los Angeles Times report. At least several of these cases have relied on a forensic tool – the floatation test – that has questionable accuracy, said the outlet.
In the U.S., the National Association of Criminal Defense Lawyers has called the test “faulty.” It involves putting lung tissue in water to see if it will float, which allegedly determines whether a person was breathing at their time of death.
According to the Times, the test dates back to the 1600s and can easily be wrong. Courts in multiple countries have even exonerated women when too much weight has been given to the test.
“It’s an invalid test that has gained a veneer of reliability,” said Dr. Gregory Davis, a forensic pathologist at the University of Kentucky quoted by the outlet. It explained that air and gas can enter the lungs in multiple ways unrelated to babies taking a breath.
However, Jocelyn Viterna, a Harvard sociologist who studies reproductive rights, told the L.A. Times that prosecutors in El Salvador referred to the test as a “gold standard,” forensic test. For one case in Argentina, requests for more detailed tests were denied, and a medical examiner in El Salvador admitted to not ordering other more “expensive” tests.
Viterna has reviewed 59 cases of women charged with killing newborns in El Salvador between 1998 and 2017. Though at least 38 were convicted, she believes many of the women were innocent.
Public records indicate there are at least three such convictions annually in Mexico. Both El Salvador and Mexico have strict abortion laws.
According to the L.A. Times, the flotation test was used to accuse the woman who is currently facing criminal charges in Mexico of allegedly killing her newborn.
She is identified only as Guadalupe, and reportedly grew up poor in Umán, Mexico. When she was a 17-year-old student in 2019 she rushed to her school’s bathroom with stomach pain and delivered her baby on the toilet and fainted.
A medical examiner and prosecutors argued that she killed the infant. Guadalupe denies it, and maintains that she did not even know she was pregnant.
Other women who have been incarcerated based on the flotation test and released include in the past decade: Maria del Carmen Viera of Argentina, Maria Teresa Rivera of El Salvador and Isabel Hernandez Contreras of El Salvador.
Another El Salvador woman known by the pseudonym Manuela did not live to see release. She died from cancer in prison when she was 32 years old.
Later, a court found that authorities had violated Manuela’s presumption of innocence by overlooking the fact that she suffered from severe preeclampsia, which can result in sudden delivery and death of a baby.
While she was not able to live long enough to leave prison, Manuela’s story has inspired activist groups in Latin America, said the L.A. Times.
Last month, The Guardian reported that 65 women so far have been freed in El Salvador “after having been wrongly jailed on murder charges following a miscarriage or other obstetric emergency since the total ban on abortion came into force in 1998.”
“Don’t let our reality become your reality,” said Morena Herrera, an activist quoted by the outlet. “If the law changes, doctors’ hands will be tied and women will die. Do everything you can to stop this because the consequences of losing access to abortion are grave.”
According to the Guttmacher Institute, 26 states are expected to ban abortion if the Supreme Court overturns Roe V. Wade.
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