A Dangerous Departure

The modern international human rights system was created to protect universal values of dignity and equality from national laws that attacked those norms and weaponized the state against certain populations. Massive progress has been achieved in understanding the protections needed to safeguard gender equality and reproductive autonomy. Today, however, governments from Argentina to the United States to Hungary and beyond are engaging in concerted efforts to assail and undermine sexual and reproductive rights that have long been understood as gendered interpretations of fundamental rights under international law. In this context, the recent decision by the Inter-American Court of Human Rights in Beatriz v. El Salvador is a missed opportunity to consolidate the Court’s jurisprudence on sexual and reproductive health and rights and defend the legitimacy of international human rights law.

The facts

Beatriz was a young woman from the impoverished state of Usulután, El Salvador, who, after carrying a high-risk pregnancy to term despite suffering from Lupus (an autoimmune disease that can aggravate pregnancy complications and cause fetal death), found herself pregnant a second time. Despite medical consensus among fifteen doctors of the lack of fetal viability and the immediate harm to Beatriz, she was forced to wait in physical and mental anguish for months as various institutional and judicial entities deliberated on whether to allow her doctors to perform a therapeutic abortion.

The context

El Salvador is one of only five countries in Latin America, and twenty-three in the world, where abortion is banned with no exceptions for risks to the life, health, and integrity of the pregnant person. Moreover, El Salvador aggressively prosecutes women who have obstetric emergencies and suspected abortions for the crime of aggravated homicide, carrying prison sentences of thirty to fifty years, and imprisonment of six to twelve years or loss of medical license for providers convicted of providing an abortion. This opinion comes in the wake of a previous case challenging the ban: In Manuela v. El Salvador, the Court highlighted the gender-based stereotypes evident in Manuela’s mistreatment, the conflict between doctor-patient confidentiality and criminal reporting requirements for abortions, and called for further guidelines on medical ethics as well as management of obstetric emergencies.

In matters of reproductive rights, the Court previously long understood the potential of law to “publicly and authoritatively proclaim and transform” narratives of women’s social equality and full citizenship in a region permeated by gender-based violence and discrimination. In the Beatriz decision, the Court abandoned this jurisprudence, in favor of the proceduralist approach of the European Court of Human Rights, and fails to adopt a robust gender perspective on well-enshrined rights under international law.

The decision

In its opinion, the Court recognized the violations of Beatriz’s rights to personal integrity, privacy, and health, noting that there were no protocols to timely address cases of obstetric complications confronting the bounds of the abortion ban, despite obligations under El Salvador’s constitution art. 65 to do so (explicitly recognizing the right to health and the State’s obligation to protect it). This lack of regulation and legal certainty forced medical providers to “bureaucratize” and “judicialize” Beatriz’s case, rather than provide care, leading to prolonged delays to the detriment of her physical and mental health. While the Court declined to find this ill-treatment rose to the level of torture, it ruled that Beatriz suffered gender-based, obstetric violence at the hands of the State in being denied access to healthcare under particularly vulnerable circumstances (para. 151).

However, the Court distinctly avoided acknowledging the clear effects of El Salvador’s draconian abortion restrictions on women, providers, and the health system. Regardless of whether Beatriz faced criminal charges, the abortion restrictions defined every aspect of the pathway for treating her high-risk pregnancy, including the ethically and medically unacceptable delay in receiving medically appropriate care, the interference with her personal integrity and family, the physical and mental anguish she suffered carrying a nonviable fetus, and the chilling effect on providers. In short, El Salvador’s abortion ban results in violence against women and a failure to respect multiple rights under the American Convention of Human Rights and the Protocol of San Salvador.

Further, the Court departed from its record of eschewing formalistic interpretations of rights obligations and holistically analyzing the effective enjoyment of rights in terms of State acts and omissions within specific institutional contexts. As highlighted in the partial concurrence by Judge Sierra Porto, the Court ignored what its jurisprudence, including I.V. v. Bolivia, previously acknowledged: that the ban’s effects on the health system are engendered by background and informal norms of gender stereotypes, posing tremendous challenges to making the Court’s judgment actionable and guaranteeing effective enjoyment of rights. In Beatriz – which failed to cite I.V. v. Bolivia – the Court declined to extend its established understanding of negative and harmful gender stereotypes and their clear impacts on sexual and reproductive health rights.

It also failed to follow the implications of its jurisprudence regarding intersectionality. Across a region with high indices of social and economic inequality, impoverished women invariably suffer from a lack of access to care and abuses within the public health system. In El Salvador, the majority of women prosecuted under the ban are young, of low socioeconomic status and educational attainment, and come from rural areas. More than 57% of the originating criminal reports against women prosecuted from 2000 to 2011 came from the health workers that treated those women at public hospitals. Restrictive abortion laws criminalize impoverished women for the result of States’ own political failures to provide them meaningful access to livelihoods, education, and preventive healthcare, as well as States’ failure to prevent sexual violence and exploitation of women. This punitive instrumentalization of the health system reproduces intersectional discrimination against those belonging to multiple disadvantaged groups, operating at interpersonal, institutional, and societal levels.

Additionally, the Court’s decision stunningly ignores its previous standards for balancing the rights of a pregnant person and a fetus, by failing to cite Artavia Murillo v. Costa Rica. In that case, the Court explicitly recognized the right to life of an embryo/fetus does not constitute an absolute and unconditional right, but gradually increases over gestation until becoming a separate person at birth: this incremental right implies “that exceptions to the general rule [of the right to life of embryos] are admissible,” such as whether the fetus can survive independently outside the womb. As pointed out in by Justice Sierra Porto, the Court’s decision in Beatriz, by not acknowledging the applicability of the Artavia Murillo protections, consigns as irrelevant the right to life analysis in Beatriz’s case and erodes the rights balancing standard for the fetus and the pregnant person, signifying a dangerous and alarming departure in terms of recognizing sexual and reproductive autonomy for the region.

The future

In its reductive analysis of an issue impacting millions of women and pregnant persons, the Court has undermined the developing consensus on sexual and reproductive health rights previously consolidated by apex courts in the region, as well as in the international human rights system. The Court’s narrow ruling confines the outcome of Beatriz to vindicating the dignity of an individual who suffered egregious harm at the hands of the State. Instead, the Court should have recognized reproductive health issues implicate who has power over whom, under what conditions, and what claims can be made upon health systems to uphold individuals’ dignity in diverse, democratic societies. Speculating on whether the opinion was influenced by personal views among justices on the Court, the external political context, or a combination of both is not particularly useful. However, it is certainly true that the Court’s timorousness in Beatriz undermines the legitimacy of international normative frameworks that have, for decades, progressively expanded the conditions necessary to protect and promote universal human dignity and agency, and sends a dangerous signal to governments that would abridge these rights in future.