Content warning: this article contains references to violence against women, including sexual violence.

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.

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.

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.

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.