Abortion in International Human Rights Law at a Crossroads

In March 2023, the Inter-American Court of Human Rights (IACtHR) held public hearings in Beatriz v El Salvador. Beatriz deserves close attention. It is the first time that the Court has been asked to rule directly on the human rights impact of criminalising abortion. The case is being heard at a time when abortion as a human rights issue is garnering considerable attention worldwide. Watching the hearings affords an insight into the competing frames that feminist/pro-choice and anti-choice actors use when articulating their demands in legal fora. Perhaps most importantly, the hearings were a reminder that at the centre of this case is a family that has had to lay their grief and personal lives bare in the hopes of achieving redress.

This blog summarises the facts of the case and its journey through the inter-American human rights system, highlights some of the main framings that Beatriz’s and El Salvador’s legal teams used in the hearings, and reflects on the potential outcomes of the case, as well as the importance of cultivating meaningful transnational solidarity in the feminist and human rights movements.

Facts of the Case and the Inter-American Commission’s 2020 Decision on the Merits

El Salvador criminalised abortion in 1998. Abortion was previously permitted when it was the only means of saving the mother’s life, in the case of rape, and in the case of “foreseeable serious fetal deformity.” Human rights bodies including UN human rights treaty monitoring bodies, UN special rapporteurs, the UN High Commissioner for Human Rights, and the Inter-American Commission on Human Rights have criticised El Salvador’s abortion ban.

Mara Ebbers also discusses the facts of the case in her recent blog post, but I will include them here for ease of reference. From February to June 2013, Beatriz, a 22-year-old woman with lupus who was pregnant with an anencephalic foetus, was forced to continue with her pregnancy by El Salvador’s abortion legislation. This was despite medical consensus that continuing with the pregnancy posed a grave risk to her health and life, despite anencephaly being incompatible with life outside the womb, and despite Beatriz and her medical team agreeing that an abortion was the right course of action for her. Members of her medical team sought guidance from various branches of government and independent national human rights bodies, while Beatriz’s legal team filed an amparo with the Constitutional Section of the Supreme Court to determine if she could have a legal abortion. In April 2013, UN human rights experts called on the government to permit the abortion to protect Beatriz’s human rights. Her case received attention from national and international media, with both Beatriz and her mother speaking to the media.

On 29 April 2013 the Inter-American Commission on Human Rights (IACHR) issued precautionary measures ‘to protect the life, personal integrity and health’ of Beatriz. Since these were ignored, the Inter-American Court issued provisional measures on 29 May 2013 requiring El Salvador to permit Beatriz’s doctors to provide the medical treatment they ‘considered opportune and appropriate’ to protect her rights to life, health, and physical, mental, and moral integrity.

Despite medical evidence and these interventions, the Constitutional Section took until 29 May to rule by a 4-1 majority that ‘the rights of the mother cannot take precedence over those of the “nasciturus” or vice versa’, and that permitting the abortion would contravene the constitutional right to life beginning at conception. On 3 June, Beatriz started going into labour. Her daughter was delivered via Caesarean section and lived for only five hours. Beatriz spent time in intensive care and one of her kidneys was permanently damaged. In November 2013 four feminist NGOs filed a petition on her behalf with the IACHR. The petition was accepted in 2015 and declared admissible in September 2017. Sadly, Beatriz died in October 2017 due to major health complications precipitated by a motorbike accident. Her family and NGOs agreed to continue with the petition, with the Commission issuing its decision on the merits in March 2020.

In this decision, the IACHR determined that criminalising abortion violated Beatriz’s rights to life (article 4.1), personal integrity (article 5.1), private life (articles 11.2, 11.3) and health (article 26), all in relation to the obligations established in articles 1.1 and 2, of the American Convention on Human Rights (ACHR). The Constitutional Chamber’s decision violated her rights to judicial guarantees and protection under articles 8.1 and 25.1 of the ACHR, in relation to article 1.1, as well as article 7b. of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Belém do Pará Convention). The pain and suffering she experienced constituted cruel, inhuman, and degrading treatment, violating article 5.2 ACHR and articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture. Criminalising abortion in 1998 violated the ACHR article 9 principle of legality in relation to articles 1.1 and 2 ACHR. For failing to adopt laws and policies in accordance with international standards on women’s sexual and reproductive health, the Commission found the state responsible for violating article 7 of the Belém do Pará Convention, and ACHR articles 24 and 1.1, in relation to article 2. It also determined that the state was responsible for violating Beatriz’s family members’ right to physical, mental, and moral integrity enshrined in article 5.1 ACHR due to the pain, anguish, and uncertainty they experienced.

The Commission made five recommendations to the state. Two concerned support and compensation for Beatriz’s family. The other three were: (1) adopting legislation permitting abortion in cases of fatal foetal abnormality, risk to life, and serious risk to health and personal integrity; (2) ensuring access to abortion in those circumstances and in line with health and human rights standards; and (3) introducing a moratorium for abortion-related offences and reviewing previous abortion-related cases. Given that El Salvador’s government made no progress in any of these three areas, the Commission referred the case to the Court in January 2022.

The March 2023 Court Hearings

Over two days, the Court heard testimony from Beatriz’s mother Delmy, two medical experts and two legal experts (one of each representing Beatriz and El Salvador respectively), final statements by both parties, and two interventions by the Commission.

As is common in the abortion “debate”, human rights and medical expertise were central framings for all parties. Regarding human rights, the state and their expert legal witness argued that the right to life begins at conception, and that human rights should protect the most vulnerable, namely “unborn” or “preborn” life. This is common human rights framing for anti-choice actors that draws on specific interpretations of Catholicism. Beatriz’s representatives and the Inter-American Commission’s use of the human rights frame foregrounded Beatriz’s lived experience, and health and human rights standards that recognise abortion access as necessary for preventing mortality, morbidity, and human rights violations. They also emphasised the need to challenge gender-based discrimination, and to respect and realise women’s decisions and autonomy (voluntad). This human rights framing draws upon feminist theory and feminist understandings of rights and equality.

For all parties, claiming authority in terms of medical expertise was one of the main sites of contestation. Each party provided an expert medical witness, and most of the questioning centred on clarifying the expert medical witnesses’ experience, involvement in treating Beatriz, and interpretation of the severity of her symptoms and appropriate courses of treatment in cases like hers.

It remains to be seen what elements of these framings will shape the Court’s reasoning. It is likely that the Court will reiterate the Commission’s findings in its decision on the merits, given its largely progressive approach to sexual and reproductive health and rights (SRHR) cases since the mid-2010s and the current composition of the Court. This is by no means guaranteed, however: Mara Ebbers’s blog post analyses the Court’s at times contradictory and even conservative approach to SRHR-related issues, and how this might inform the Court’s judgment in Beatriz. In addition, as Lea Bilke, Vanessa Bliecke, and Ella Schönleben discuss in their blog post and I have written elsewhere, the Court’s judgment in Manuela and others v El Salvador was in many respects a missed opportunity for highlighting and critiquing the human rights impact of criminalising abortion, with the Court opting to only “take into account” this wider context.

It also remains to be seen how the Court will delineate the scope of abortion access — whether it will call for full decriminalisation, or decriminalisation in only certain circumstances. Furthermore, it is unclear on what basis it will determine that states should provide abortion access: a proportionality test-based approach of “balancing” the state’s interest in protecting “unborn life” against “a woman’s right to choose”, a feminist/health and human rights approach, or an uneasy combination of the two.

Besides these politico-legal questions, Beatriz raises questions about which cases get attention and why. The global outrage that met the overturning of Roe v Wade was warranted, but abortion is heavily restricted or completely banned in many other countries worldwide, and even where abortion is legal it is not always accessible. Feminists and human rights activists should make a conscious effort to inform themselves of and provide a platform for issues of reproductive (in)justice worldwide. It is hoped that this very brief English-language overview of current developments in the inter-American human rights system will contribute to this cause.