A Deafening Silence: The Inter-American Court’s Failure to Address Abortion in in Beatriz v El Salvador

[Alicia Ely Yamin (X: @AE_Yamin) is a lecturer on law and the director of the Global Health and Rights Project at the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School; an adjunct senior lecturer on health policy and management at the Harvard TH Chan School of Public Health; a visiting professor of law at the Universidad Torcuato Di Tella in Buenos Aires, Argentina; and the senior advisor on human rights and health policy at Partners In Health.

Sabrina Ochoa is a Henigson Human Rights Fellow at the Center for International Law (CenterLaw) Philippines and a graduate of Harvard Law School.]

As clashes over sexual and reproductive rights are presently used in culture wars and lawfare, 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. Beatriz was a young woman from the impoverished state of Usulután, El Salvador, who, after experiencing a high-risk pregnancy due to Lupus, 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. 

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.

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 to do so. This lack of regulation and legal uncertainty 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.

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 structural 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 dissent 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 the partial dissent, 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 dissolution of sexual and reproductive autonomy for the region.

In its reductive analysis of an issue impacting millions of women and pregnant persons, the Court has undermined the developing consensus of 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. As sexual and reproductive health and rights are under fire from conservative forces across the world, the timorousness of this Court 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.