What’s at Stake in the Abortion Case Before the Inter-American Court of Human Rights?

El Salvador’s punitive treatment of women through its absolute criminalization of abortion will come under scrutiny by the Inter-American Court of Human Rights (the “Court”) on March 22-23, in a case involving the state’s treatment of a woman in need of a life-saving abortion. Beatriz was a young woman from the impoverished state of Usulután, who, after experiencing a pregnancy fraught with complications due to an autoimmune disease, found herself pregnant a second time. Despite medical consensus of the lack of viability of the anencephalic fetus and the harm to Beatriz if the pregnancy continued, Beatriz was forced to wait in physical and mental anguish for months while the hospital decided whether to let her doctors perform a therapeutic abortion, separated from her family and young son while in fear of dying or suffering irreparable health damage.

This case follows the Court’s 2021 judgment in Manuela v. El Salvador, which documented the negative consequences of the abortion ban on impoverished women and girls. However, in Manuela the Court missed the opportunity to directly address the multiple rights violations stemming from this ban.

The Court now has a chance to frame the Beatriz case squarely around the effects of El Salvador’s draconian abortion restrictions on women, providers, and on the health system itself, in light of its human rights obligations under the American Convention, the Protocol of San Salvador, the Convention of Belém do Pará, and the  Convention to Prevent and Punish Torture.

The State of El Salvador argued before the Inter-American Commission that Beatriz ended up delivering the child by c-section and was not criminally prosecuted, and that therefore this is not a case about the abortion ban. Such a formalistic interpretation of the dispute here ignores that the abortion restrictions shaped the context of everything that happened to Beatriz: the delay in receiving medically appropriate care for her deteriorating health; the interference with her personal integrity and family life; the physical risks and mental anguish she suffered when forced to carry an anencephalic fetus; and the chilling of providers’ behavior. 

The Court has an opportunity to extend its jurisprudence on health rights, gender equality and intersectional discrimination, and freedom from violence if it eschews the cramped interpretation of rights that the state of El Salvador is proposing, in favor of a holistic assessment of the effective enjoyment of rights in accordance with the pro homine principle as it has in many other cases, including with respect to pregnant women in the 2022 case of Britez Arce v Argentina.

Adapting an international legal consensus to the regional context

To a unique extent, the Inter-American Court draws on the jurisprudence and standards of other supra-national forums and instruments in international human rights law.  There is an overlapping consensus in international law that recognizes severe abortion restrictions as violations of women’s human rights to health, dignity, and freedom from gender-based violence. Moreover, multiple international bodies have already found specifically that El Salvador’s  ban violates international standards on the rights to life, health, personal integrity, freedom from cruel and inhuman treatment, and moreover is inherently discriminatory against women.  

The Court has a number of options if it strikes down the absolute ban on abortion.

The  European Court of Human Rights, which has adopted a largely proceduralist approach to abortion rights, has underscored problems regarding the lack of clear regulatory frameworks that undermine women seeking abortions under regimes of exceptions. The Court could adopt a similar approach in the Beatriz case given that although the Salvadoran Penal Code provides for mitigation of criminal responsibility in abortion-related offenses, there are no clear and objective criteria or procedures to prevent charges from being brought. However, such an exceedingly narrow holding would fall woefully short of capturing the nature of the rights violations in this case.

The Court should instead follow the lead of supra-national human rights bodies, such as the CEDAW Committee, which in addition to lack of legal certainty, have emphasized the gender-based discrimination and gender-based violence underpinning harsh abortion restrictions. The Latin American and Caribbean (LAC) region has extremely high rates of gender-based violence and femicide. In El Salvador specifically, more than two-thirds of women (67.4%) have experienced some type of violence throughout their lifetime; and four out of ten women have suffered sexual violence through their lifetime.  Coupled with this exposure to unconsented sex,  El Salvador has a high unmet need for contraception and stands out among countries in the region in terms of alarming teenage pregnancy rates.

In this context, the total abortion ban should be understood as part of systemic violence against feminized bodies within the healthcare system. In Manuela, the Inter-Amerian Court went into detail about the ways in which discriminatory gender stereotypes underpinning the application of the ban in El Salvador affected women’s access to care, as well as their due process rights, but did not directly address the legality of the ban itself.  The Court should use the Beatriz case to extend the reasoning in Manuela to the gender-based discrimination baked into the absolute ban. By conceptualizing the lethal effects of forced pregnancy as part and parcel of systemic gender-based violence, the Court can build on its record of addressing structural discrimination against women, and in particular poor women.

Deepening the regional consensus on reproductive rights qua fundamental rights

Given the incorporation of relevant international human rights treaties into the constitutions of many countries in the region through a ‘constitutional bloc’,  including that of El Salvador, the Court should also take the opportunity to reinforce the growing regional consensus that criminalizing therapeutic abortions when there is a risk to the life and/or health of the pregnant person, where the fetus is nonviable, and where the pregnancy is a result of rape violates both constitutional and international standards.

This liberalizing regional trend reflects two broad developments. First, since the introduction of transformative constitutions in multiple countries in the region in the late 1980s and 1990s, there has been an evolution toward constructing normative standards in law based on reasoned arguments as opposed to private moral values, together with a more assertive role for high courts in matters affecting substantive and structural equality. Second, by contrast with some countries —and with the European Court of Human Rights, which largely continues to treat abortion as a “sensitive ethical issue,”— apex courts in the region have demonstrated an increasing understanding of reproductive rights as legally enforceable fundamental human rights. In turn, the authority of legislatures to use the criminal police powers of the state based on religious and moral narratives has given way across the region to secular interpretations of rights obligations befitting plural democratic societies.

It is imperative that, in assessing El Salvador’s absolute abortion ban, the Court reinforces this doctrinal trend which emphasizes a proportional balancing of women’s rights with fetal interests. That is, acknowledging growing life within a woman’s body does not mean that the legal system gives protection to fetal life of the same degree as it does to the human person, and women’s claims to dignity cannot be upheld without acknowledging the sui generis nature of pregnancy, an obligation imposed upon no other population.

Over ten years ago, in the IVF case of Artavia Murillo v. Costa Rica, the Inter-American Court already recognized the right to life of an embryo or fetus does not constitute an absolute and unconditional right, but gradually increases over gestation until becoming a separate person at birth.

The Court now has the opportunity to thicken this evolving regional consensus, and elaborate on the normative implications of circumstances of pregnancy. For example, in cases of anomalies incompatible with life, such as in Beatriz’s case, the State’s duty to protect the life of the fetus is diminished because of the impossibility of having a life plan. The Colombian Constitutional Court reasoned that in such cases, requiring a woman to bear the burden of pregnancy would amount to cruel, inhuman, and degrading treatment. In 2012, Brazil’s Supreme Federal Tribunal recognized the physical and emotional impact of being forced to carry a nonviable fetus to term – comparing it to torture – reasoning that “the rights of a fetus that has no possibility of surviving in the long term cannot prevail over the constitutional rights to dignity, autonomy, privacy and moral, physical and mental integrity of women.”

Likewise, there is increasing agreement about the inapplicability of criminalization when pregnancy is a result of rape. The Constitutional Court of Ecuador, in a recent decision, found that the choice to apply criminal law in cases where the pregnancy resulted from rape “emptied fundamental rights of their content.” In the 2012 “F., A. L.” case, involving abortion after rape, the Supreme Court of Argentina not only extended the rape indication to all gestating persons; it held that requiring medical consultations and certificates in such cases “unduly conspires against the rights of a rape victim” and as such constitutes “institutional violence.”

Human rights-based approaches to health and health systems

The growing appreciation for human rights-based approaches to health across the region has produced gendered understandings of health systems’ roles as core social institutions that uphold democratic values of equality and dignity, which Courts have held is incompatible with denying women access to abortion in cases where there are serious risks to health.

The Court has carefully constructed the right to health as enforceable under the American Convention and Protocol of San Salvador, delineating responsibilities for regulating private actors, ensuring adequate oversight, and providing appropriate standards of care for marginalized patients, including persons with disabilities, the elderly and pregnant women. In the context of an absolute ban that chills health providers’ capacities to provide appropriate standards of care, and weaponizes the health system against women, the Court should deepen and extend theorization of the role of health systems in upholding the right to health and en-gendering democratic states of law.

Finally, the impacts of El Salvador’s absolute abortion ban on the health and other rights of women cannot be fully appreciated without an intersectional analysis relating to the multiple axes of disadvantage faced by poor and marginalized women, who are the ones who overwhelmingly use the public health system.  In Gonzales Lluy v. Ecuador the Court recognized that “the discrimination experienced by [the victim in the health system] was caused not only by numerous factors but also arose from a specific form of discrimination that resulted from the intersection of those factors; in other words, if one of those factors had not existed, the discrimination would have been different.” In the case of Beatriz, the Inter-American Commission found that her conditions of extreme poverty, her rural background, and her lack of education combined to increase her vulnerability to the violation of her human rights that occurred in this case.

In every country, it is poor women —more than men because of reproductive needs and socially constructed caregiving responsibilities— that experience their marginalization and exclusion from society through the health system. And there is no case that more starkly illustrates how a health system can be used to systematically police and punish impoverished pregnant women than the abortion ban in El Salvador. A transformative judgment from the Court would vindicate the significance of these women’s lives and dignity by extending and deepening its jurisprudence on intersectional discrimination in the context of health systems in plural democracies.

Photo: ‘Pañuelazo en Ciudad de México por el aborto legal en Argentina‘ (August 8, 2018).