“Justice was done,” declared Beatriz’s mother, after the Inter-American Court of Human Rights condemned the state of El Salvador, which, under severe legislation, prevented her from having an abortion in 2013.
The Inter-American Court of Human Rights (IACHR) issued a significant ruling on Dec. 20, with the potential to further transform the legal landscape of abortion rights in Latin America.
In particular, IACHR ruled that El Salvador violated a series of rights by denying a 22-year-old woman an abortion in 2013, despite her health and life being at risk and the pregnancy being unviable. According to the court, the government violated her right to health, personal integrity, privacy, access to justice, and to live a life free of violence—rights stated in the Inter-American Convention of Human Rights and the Belém do Pará Convention to prevent, punish and eradicate violence against women.
In 2013, the woman, Beatriz, already a mother of a 1-year-old, became pregnant again. Beatriz had already been diagnosed with lupus, an auto-immune disease which increased the risk of miscarriage, preeclampsia and blood clots, making hers a high-risk pregnancy. Some months later, her baby was diagnosed with anencephaly, a congenital malformation which makes life outside the womb impossible. Given these circumstances, Beatriz requested permission to have an abortion. But since 1998, El Salvador has eliminated all exceptions to its abortion ban, so her request was denied.
Beatriz went into early labor at 26 weeks and was given a C-section. Her baby died five hours later, and she was left with permanent kidney damage. In 2017, at the age of 26, Beatriz suffered a car accident and died from health complications aggravated by her illness.
El Salvador is one of the four Latin American countries that ban abortion under all circumstances; the others are Honduras, Nicaragua and Dominican Republic. While the bans are similar across the four countries, El Salvador has been infamous for the strict enforcement of the law, equating the crime of abortion to that of homicide. The abortion ban was passed in 1998 and the following year, a constitutional amendment defined the right to life from the moment of conception, providing the legal basis for the prosecution of abortion as homicide. This has led to women being sentenced from 25 to 50 years for interrupting their pregnancy or for having obstetric emergencies and being accused of provoking their own abortions.
Given the numerous failed attempts to revert the ban within the country, local and international feminist and human rights activists decided to take the issue of abortion to the IACHR: In 2013, the Colectiva Feminista para el Desarrollo Local de El Salvador, IPAS Central America, and the Centro por la Justicia y el Derecho Internacional, brought Beatriz’s case to the Inter-American system.
In 2015, the Inter-American Commission on Human Rights concluded the Salvadorian state was responsible for the violation of the rights to life, personal integrity, judicial guarantees, privacy, equality before the law, judicial protection and right to health.
In 2022, the case was taken by the IACtHR with the first hearing taking place in March of 2023. The international attention the case has received was evident: A total of 119 amicus curiae were presented to the court from legal, medical and academic associations all over the world, 89 of which were in favor of Beatriz.
Now every woman knows that if a pregnancy places their health or life at risk, they have the right to receive adequate treatment.
Morena Herrera
The most noteworthy part of the ruling: The court considers the denial of the request for an abortion as a case of “obstetric violence.” Coined by Latin American activists in the early 2000s, obstetric violence refers to acts of abuse in the context of pregnancy labor and birth, including physical and psychological violence, abusive medicalization and pathologization of natural processes that involve the loss of autonomy over our bodies and sexuality.
While the term is usually applied to the denial of a pregnant person’s decisions around what kind of birth they would like to have, in this case the court is allowing for a more expansive definition, in line with recent arguments by feminist activists. They have argued that obstetric violence can occur in any reproductive event during women’s lives when interacting with the health care system, be it an abortion or a regular pap smear. The denial of the abortion itself was considered a violation of Beatriz’s bodily autonomy and thus an instance of obstetric violence.
The court is now ordering El Salvador to adopt clear guidelines for medical and judicial personnel when faced with pregnancies that put women’s life and/or health at risk. In addition, the government should develop training workshops to effectively communicate these new guidelines.
The ruling represents a clear step towards advancing abortion rights in El Salvador. But the court could have gone further in their condemnation of El Salvador’s existing laws. Judge Humberto Sierra’s dissenting opinion highlights this shortcoming: He states that the court’s ruling should have been more straightforward and place the root of the violation of Beatriz’s rights in the country’s abortion total ban.
The ruling was received as a triumph by Beatriz’s family and the activists that supported them in this case—but their work does not stop here. It is hard to envision the current Salvadoran government under Nayib Bukele (2019-today) embracing the decision. Bukele has implemented an anti-gender agenda, banning sexual education and the discussion of gender in public schools and stating his support for the total abortion ban repeatedly. He also has a history of rejecting the Interamerican system. In 2021 his government stopped collaborating with the Organization of American States (OAS) after the organization created a commission to investigate corruption cases within his government.
Activists are now committing to monitor the government’s compliance with the court’s ruling.
“We are going to be vigilant and monitor the measures so that they apply international standards from the World Health Organization,” said Fernanda Díaz de León from IPAS in the press conference following the verdict.
In any case, this ruling provides activist organizations with a stronger platform to fight for the end of the total ban in the country.
“These 11 years that we have been supporting Beatriz and her family have brought a change in Salvadorian society,” said activist Morena Herrera from the Colectiva feminista para el Desarrollo Local. “Now every woman knows that if a pregnancy places their health or life at risk, they have the right to receive adequate treatment.”
Rest in power, Beatriz.
