El Salvador: regional human rights system delivers civil society victory
Content warning: this article contains references to violence against women, including sexual violence.
Women in El Salvador are beginning to see light at the end of the tunnel. In a landmark ruling following a case brought by women’s rights organisations, the Inter-American Court of Human Rights determined that total abortion bans and the criminalisation of women who experience obstetric emergencies constitute gross human rights violations. In a binding decision with regional implications, the Court instructed the Salvadoran state to redress the harm and modify its laws and policies. Women’s rights organisations, in El Salvador and beyond, have started pushing for the ruling’s implementation while continuing to work for the full recognition of women’s rights and autonomy in the form of complete legalisation of abortion.
As they prepare to march again on International Women’s Day, 8 March 2022, women in El Salvador have cause for optimism. Their country still has one of the most draconian anti-abortion regimes not just in the Americas but in the world – but for the first time, they feel that change is within reach.
On 2 November 2021, the Inter-American Court of Human Rights (IACtHR) issued a landmark ruling in a case known as Manuela vs. El Salvador. In the first international challenge to El Salvador’s abortion laws, the highest judicial human rights body in the Americas found the state responsible for violating the fundamental rights of a woman who was sentenced to 30 years in prison after suffering a stillbirth. The Court ordered the state to provide full reparations to the victim’s family and reform its laws and policies to stop criminalising women who need reproductive healthcare.
The ruling is binding for the 20 countries of the Americas – out of 35 – that have accepted the Court’s jurisdiction: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay. To comply with the Court’s ruling, those among them that continue to prosecute women for abortion-related crimes – notably Nicaragua – will have to shift gears and ban healthcare staff from alerting law enforcement when women seek their help.
Regional norm-setting: IACtHR rulings on women’s rights
Regional institutions like the IACtHR rarely make international headlines. But they can be vital allies for civil society in setting human rights norms and unlocking progress when national-level processes resist change.
The IACtHR’s ground-breaking ruling builds on a long history in which the Court has consistently set standards to identify and address violence against women in its various forms – including through the denial of bodily autonomy and sexual and reproductive rights.
Over decades’ worth of rulings, the IACtHR has come to view violence against women as a violation of fundamental human rights and an offence to human dignity that transcends socio-cultural contexts. It has established that when states fail to apply due diligence in the investigation of such violations this is part of a wider pattern of violence against women. It has consistently viewed impunity in cases of gender-based violence to be a key factor that perpetuates violence.
A 2012 IACtHR ruling established the right to equality as a fundamental component of personal dignity and made it the duty of states to promote social progress to prevent discrimination and adopt positive reinforcement measures to counter it.
Several IACtHR rulings have insisted that differences in treatment must be well-founded, proportional and targeted, and must reverse the burden of proof, so that it is up to the authorities to demonstrate that a decision does not have a discriminatory purpose or effect. In a number of rulings, the IACtHR has found that tolerance for discrimination and impunity are the result of systematic, structural and pervasive cultural patterns.
Successive IACtHR rulings have viewed gender-based violence as one of the most extreme and pervasive forms of discrimination. Rulings have established that non-compliance with states’ due diligence duties also constitutes discrimination.
The IACtHR has long paid attention to the intersectional nature of exclusion, focusing on the effects of overlapping layers of discrimination based on gender, ethnicity, sexual orientation and socio-economic status. In a 2019 ruling against Mexico, it established that states have a duty to take effective action as soon as they identify a situation of multiple discrimination.
In a 2006 case against Peru, the IACtHR recognised the importance of taking into account situations in which women are specifically targeted or affected by acts of violence differently than men. Later, in a 2012 case regarding a ban on in vitro fertilisation in Costa Rica, it highlighted the differentiated impact that seemingly neutral measures can have on women.
Other rulings integrated the concept of psychological violence against women and established that violence in a family, household unit or interpersonal relationship are violations of women’s right to life. A further ruling conceptualised sexual violence as aimed at ‘intimidating, degrading, humiliating, punishing or controlling the victim’. The Court also reconceptualised sexual violence as torture and recognised its specific uses in the context of armed conflict. And it presented an evolving and expanded concept of rape.
The IACtHR has insisted on applying a gender-sensitive approach and has highlighted the damage of gender stereotypes and prejudices and therefore the state’s duty to eradicate them.
All of these provided the legal framework for the IACtHR to determine that El Salvador’s complete abortion ban constitutes gender-based violence and discrimination against women, and that its effects, unacceptably, fall disproportionately on women who face overlapping inequalities.
Manuela vs. El Salvador
Manuela – not her real name – was an illiterate 33-year-old mother of two from an impoverished rural background in a country that bans abortion under all circumstances. Unlike others with similar bans, in El Salvador the government enforces the law vigorously by criminally prosecuting both women who undergo abortions and doctors who perform them.
When interacting with the healthcare system, Salvadoran women are simply not trusted. If they arrive at a hospital with an obstetric complication, they are suspected of having tried to interrupt their pregnancy and can be criminally charged, prosecuted, convicted of homicide and sentenced to decades in prison.
Back in 2008, Manuela was unknowingly pregnant with her third child and, following a fall, she experienced a stillbirth and was rushed to hospital with a haemorrhage. Hospital staff accused her of killing her newborn and called the police. She was handcuffed to her hospital bed, repeatedly interrogated without a lawyer and rapidly charged under criminal statutes. A few months later – a rare feat of speed in a country where real crimes often drag through the justice system or remain unsolved – Manuela was convicted and sentenced to 30 years in jail. El Salvador’s 1997 Criminal Code imposes prison sentences of two to eight years for abortion but 30 to 50 years for aggravated homicide; Manuela was charged not with aborting a foetus but with murdering a baby.
A legal case to free Manuela was brought by two Salvadoran civil society groups, Feminist Collective for Local Development and Citizen’s Group for the Decriminalisation of Abortion, along with an international partner, the Center for Reproductive Rights. The plaintiffs argued that criminalising women for obstetric emergencies is a blatant human rights violation.
Salvadoran women face persecution, torture and judicial and police abuse. Justice in El Salvador is patriarchal justice.
Manuela’s ordeal lasted two years before she died of cancer in 2010, handcuffed to her hospital bed, following misdiagnosis and inadequate treatment. Her family continued to seek justice. More than a decade later, they finally got it.
The Court concluded that the Salvadoran state had violated Manuela’s rights to life, health, judicial protections and guarantees, and freedom from discrimination and gender-based violence, among others. Manuela’s pre-trial detention was ruled arbitrary and in violation of the presumption of innocence, and the decision to convict and imprison her was deemed to have been based on prejudices and negative gender stereotypes rather than an actual investigation.
There are hundreds of Manuelas in El Salvador and across the Americas. According to research conducted by women’s rights groups, the criminalisation of abortion in Latin America disproportionately affects young women of Indigenous or Black descent, with limited economic resources and little schooling, living in rural or marginalised urban areas.
To avoid further cases such as Manuela’s, the IACtHR ruled that the Salvadoran state must reform the legislation that currently mandates the automatic detention of women accused of alleged abortions, modify its legislation on doctor-patient confidentiality so that medical staff don’t have to denounce women under their care, ensure full access to healthcare by women who suffer obstetric emergencies and implement comprehensive sex education policies.
Voices from the frontline
Sara García Gross is advocacy coordinator of the Citizens’ Group for the Decriminalisation of Abortion in El Salvador, an organisation that promotes public awareness to change abortion laws, provides legal support to women who have been convicted or charged with abortion or related crimes and disseminates information on the importance of women receiving adequate sexual and reproductive healthcare to prevent them resorting to unsafe, life-threatening abortions.
As feminists we are fighting to change the law that criminalises abortion under all circumstances. In El Salvador women are unjustly persecuted. Women’s reproductive rights are violated, especially for younger women and those who live in poverty and in the country’s rural areas. We are fighting to change a restrictive, absolutist and absurd regulatory framework.
We are also fighting for women’s freedom. There are currently 12 women in prison serving sentences that are extremely unjust. Our fight is for women’s freedom and women’s lives. We want abortion to be legal in El Salvador. We fight for women to have the right to build our own lives. We denounce forced pregnancies as a form of torture.
In our struggle for women’s freedom, we have pursued multiple strategies, starting with strategic litigation to obtain everything from commutations of sentences to sentence reviews. Our focus is on achieving freedom, putting into practice the feminist slogan ‘I believe you sister’. We fight for the recognition of the innocence of women facing unjust and absurd sentences.
But the legal route has not been our only key strategy; social mobilisation at national and regional levels has also played a major role. The feminist movement has organised and spoken out in relation to the cases of criminalised women. Sit-ins have been organised in front of embassies in El Salvador and other countries, letters have been sent to the courts and campaigns for reproductive justice have been carried out, including the ‘We are missing 17’ campaign.
Another strategy has focused on collecting evidence. We have carried out an investigation called ‘From hospital to prison’, which allowed us to make this problem visible. Through a review and analysis of case files, sentences and investigations, we have been able to understand who anti-abortion legislation targets and who it persecutes: young and poor women living in rural areas. This constitutes intersectional discrimination.
The campaigns, dialogues and debates we promote in academia as well as grassroots communities have also been part of our strategy. Advocacy processes helped us identify windows of opportunity in the Legislative Assembly and other state institutions and promote the submission of new initiatives. Several bills have been submitted to reform article 133 of the Criminal Code to decriminalise abortion on four grounds. These bills were far from getting passed but allowed us to place the issue of abortion on the public agenda.
Another very important strategy has involved the Inter-American human rights system. We brought the case of a woman known as Manuela to the IACtHR. Strategic litigation in the Inter-American system has allowed us to address the problems of persecution, torture and judicial and police abuse faced by women in El Salvador. Justice in El Salvador is patriarchal justice.
The IACtHR ruling came after years of work and struggle. It is a historic ruling: the IACtHR has recognised that Manuela was innocent, that she really faced an obstetric emergency and that gender stereotypes, starting with the mandate of motherhood, permeated the entire process. The IACtHR has understood that the absolute ban on abortion results in criminalisation and obstacles to access to reproductive rights. For us, Manuela means justice and hope.
This is an edited extract of our interview with Sara García Gross. Read the full interview here.
Beatriz vs. El Salvador
Soon after the IACtHR ruled in the case of Manuela, the Salvadoran state learned it will soon again be back in the dock: in January 2022 the Inter-American Commission on Human Rights (IACHR) referred another case to the Court, on the grounds that the Salvadoran state failed to comply with its recommendations in the case of another woman, known as Beatriz, whose human rights were denied by her country’s misogynistic laws.
In early 2013, Beatriz – a young woman from a rural area – was 11 weeks pregnant. Her pregnancy was deemed high risk because she had a serious autoimmune condition, on top of which her foetus was diagnosed with malformations incompatible with extrauterine life. Doctors recommended an interruption, but Salvadoran laws did not allow it.
A legal battle ensued: first, Beatriz filed an appeal with the Constitutional Chamber of the Supreme Court, but after 47 days she received a negative response. She also requested precautionary measures from the IACHR, which were granted. When the state failed to comply with these, the IACtHR granted provisional measures. Beatriz eventually underwent a c-section almost three months later, giving birth to a baby that, as expected, survived for only five hours. As a result of this ordeal, Beatriz’s health never fully recovered. She died in October 2017.
A full-blown movement for the decriminalisation of abortion grew around Beatriz’s case. In November 2013, several women’s rights organisations submitted a complaint to the IACHR against the state, requesting reparations for Beatriz and legislative and policy changes to prevent cases such as hers ever happening again.
In September 2017, the IACHR declared the case admissible due to possible violations of various articles of the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, better known as the Convention of Belém do Pará. Now the case is going to the Court, hopes are high that Beatriz will posthumously receive the justice denied her in life.
Civil society pushes for progress
El Salvador is legally required to comply with the IACtHR ruling, and while the Court has limited enforcement powers, civil society will continue to push for the state to implement the required legal and policy changes. Notably, a longstanding campaign for the release of women imprisoned for abortion-related crimes has already scored several victories following the ruling.
Over more than a decade, civil society action has secured the release of more than 60 women unjustly imprisoned because of obstetric emergencies wrongly classed as aggravated homicide. Since 2019, the ‘Nos Faltan Las 17‘ (‘We are missing 17’) campaign has been working on the cases of 17 such women. In December 2021, it released a video featuring several celebrities calling on President Nayib Bukele to ensure their prompt return home.
Five of those women have been released since – three on 23 December, one on 17 January and another – Elsy, a domestic worker who served 10 years of her 30-year sentence – as recently as 9 February. All of them had been convicted in hasty judicial processes in which due process guarantees, the presumption of innocence and the right to a proper defence were systematically violated. Their release was demanded by United Nations human rights experts on the grounds that they were arbitrarily detained.
The battle ahead
Just before the IACtHR issued its ruling, the Salvadoran women’s movement experienced its third legislative defeat since 1998, when the campaign began for abortion to be allowed on at least three grounds – rape, risk to the pregnant woman’s health and life-threatening foetal malformation. In October 2021, the Salvadoran Congress again upheld the existing abortion law by a large majority. Its decision was in line with the stance adopted by President Bukele, who insisted he would resist ‘international pressures’ and would not back any legal change concerning ‘the right to life, marriage or euthanasia’.
But now there’s an international court ruling the Salvadoran state must comply with. Women’s rights groups are actively campaigning, on social media and elsewhere, to sensitise the public about the implications of the IACtHR ruling and advocating for the required reforms to be put in place. They are also getting ready to take their demands out to the streets on 8 March, International Women’s Day, as they have consistently done over the years, as well as on 28 September – International Safe Abortion Day – and 28 November – International Day for the Elimination of Violence Against Women. They will keep calling out the total abortion ban as an extreme denial of women’s autonomy and an unacceptable form of gender-based violence, knowing that the highest regional court is on their side.
OUR CALLS FOR ACTION
The state of El Salvador must fully comply with the IACtHR ruling, including by providing full reparations to Manuela’s family and implementing the required legal and policy changes to stop criminalising women for abortion.
Other American states under the jurisdiction of the IACtHR must reform their legislation and policies to align with the IACtHR ruling on Manuela vs. El Salvador.
The Salvadoran women’s rights movement should keep up its strategic advocacy and campaigning until reforms are introduced and properly implemented to ensure all women have access to the healthcare that they need.
Cover photo by Roque Alvarenga/APHOTOGRAFIA/Getty Images