“When my daughter was diagnosed with lupus and was pregnant, the doctors told her that she could not continue with her pregnancy because her life was in danger. That there was only one way to save them anyway, but that they couldn’t do it. They couldn’t allow an abortion.” The intervention of Beatrice’s mother begins a historic hearing in defense of sexual and reproductive rights in El Salvador. This Wednesday and Thursday, the Inter-American Court of Human Rights (IDH Court) will examine the consequences for the first time the outright criminalization of abortion, which has been included in the Salvadoran Penal Code as a crime under all circumstances since 1998. A favorable verdict for The Family could crack the continent’s most restrictive anti-abortion legislation, which sentences abortion to up to 50 years in prison and sets a precedent in creates the region. “For my daughter, the decision to want to continue living was a torture. I just want that no one goes through what my daughter went through. Only that,” his mother explained with satisfaction in court in San Jose (Costa Rica). ).
Beatriz’ mother during the hearing this Wednesday in San Jose.
Beatriz was 21 years old and a nine-month-old boy when she was given a difficult diagnosis: she had lupus, severe kidney damage and arthritis. She also learned at this age that she was pregnant with a fetus that was developing without a skull or brain, with a malformation incompatible with life. Despite the fact that the young woman requested an abortion when she was 13 weeks pregnant, the state’s omission forced the young woman to bring the case before the Inter-American human rights system. In May 2013, 13 weeks after Beatriz’s petition, the Inter-American Court urged the pregnancy to be terminated. The state eventually agreed to perform a cesarean — a much more invasive surgery than was initially required — and the fetus died five hours later. As a result of the late surgery, Beatrice’s health deteriorated “extremely” and she died four years later after being hospitalized for a minor motorcycle accident.
as dr Guillermo Ortiz, who was also responsible for her first pregnancy, assessing the risks of this new pregnancy, he rated a “high risk” if she continued. “Given that there was no way to reverse the congenital anomaly of the fetus, we just had to protect this woman’s life,” he told the seven independent judges who preside over the region’s highest court, which was heard on Wednesday assembled was San José.
The abortion recommendation was presented to a committee of 15 unanimous physicians. However, they could not carry out the proposed treatment “for fear of reprisals”. In El Salvador, health workers who recommend or perform abortions face up to 12 years in prison. Criminalization also means many of them violate professional secrecy, reporting their patients on suspicion of intentional abortion to avoid jail time.
A mistake that can set a historical precedent
After the two-day hearings this week, the parties have 30 days to present written arguments and the court is expected to make a decision by the end of the year. A ruling in Beatriz’s favor opens up several scenarios that will ultimately depend on Nayib Bukele’s government. The President, who presented himself as the only one capable of solving the injustices in El Salvador, has turned all his policies into authoritarian measures that ignore human rights, including access to abortion. “When we went to the first ultra with my wife and saw this little heart, for me it was already my daughter. And to think about destroying or killing him… It’s difficult, even if he’s a rapist’s son, he’s your son,” Bukele said in an interview. Gone are his campaign remarks when he called those who called for Beatriz to continue with the pregnancy “fanatics”. In 2021 he positioned himself loud and clear against the legalization of abortion under all circumstances. He even got around to comparing it to “genocide” on several occasions.
An offer from the room following the audience in San Salvador, El Salvador.
This is not the first time international eyes have turned to El Salvador on this issue. In February 2020, the United Nations enforced the release from prison of three female victims of an obstetric emergency. Since 2009, 70 women have been discharged for similar diagnoses. Rosita was the last, spending 4,934 days behind bars, but there are six others who are deprived of their liberty. “The President is always talking about how he will change history. This is a perfect moment for that,” said Alejandra Burgos, a member of the Feminist Collective, a fellow campaigner on the case. “This trial is not an attack on Bukele, as some would like it to be. This is to seek justice for what happened in 2013 and what continues to happen to so many other women,” she says from the entity’s headquarters, colored purple and green today.
“Why didn’t you abort outside the system?”
In one of the auditoriums of the Faculty of Law and Social Sciences at the University of El Salvador, from where the hearing is projected, dozens of women click their tongues when questioned by one of the Chamber’s most conservative judges, Humberto Antonio Sierra. Postage to Dr. Ortiz: “If I were a woman who was told her life was in danger and that my son would be born without a head… Knowing that there are ways to have an illegal abortion, why not? did it outside the system? “Well, I don’t know. But you have to have resources for that. And I knew her and she didn’t have them,” Dr. Ortiz replied.
Although El Salvador is one of the twenty countries that recognize the Inter-American human rights system, feminist organizations fear that the Bukele government will not comply with the binding measures that the Inter-American Court will demand. “Unfortunately, in the current context, it’s an option as this government has formed alliances with anti-rightist groups and has spoken out against the rights of women and girls… That’s the big concern,” explains Erika Guevara, Regional Director of Amnesty International.
Moment when they raise the handkerchief in support of Beatrice. Rita Machuca
This concern is shared by dozens of gynecologists across the country who, since 1998, have had to give the same answer to women with high-risk pregnancies: “I can’t do anything.” Doctor Miguel de Guidos is one of them. “There are cases where science shows us the recommendations, but our hands and feet are tied,” he explains.
Both feminist organizations and the data show a reality that repeats itself over and over again: criminalization does not lead to a reduction in the number of abortions. It just forces women to find unsafe ways to do it. The knitting needle, a coat hanger, injections of soapy water, herbal teas… Methods that hurt so much they force her to “hold onto the sink,” as Annie Ernaux noted in the intimate first-person account “The Event.” “I was also willing to hold on to the sink. It never occurred to me that I might die.” Central America and the Caribbean, where the only five countries that criminalize abortion: El Salvador, Haiti, Honduras, the Dominican Republic and Nicaragua, have hundreds of women lost their lives due to anti-abortion laws.
“My daughter got a crib after she decided to have an abortion”
During the first session of the hearing, Dr. Ortiz and Beatriz’s mother alleged the persecution of anti-right groups, which self-described as “life antagonists” and had a strong presence in the country and in sectors of government. “My daughter was given a basket (cradle) after the decision to have an abortion,” says the dismayed mother. The legal team accompanying the case regrets that even after the caesarean section in which the fetus was born, the young woman was given woolen hats, as determined by the doctors without a skull and brain. “We are witnessing real torture,” added the mother.
These groups have closely followed the litigation, calling for demonstrations outside IACHR headquarters and online prayer vigils across the continent. This religious and ultra-conservative sector accuses feminist organizations of manipulating history. “There is a huge lobby that also has weight in the government. It’s undeniable,” says Burgos.
The vigil in court before the hearing in San Jose, Costa Rica. Carlo Herrera
Although this is the first lawsuit in the Inter-American system to address the implications of outright criminalizing abortion, the Inter-American Court has issued other historic judgments showing its bias towards the sexual and reproductive rights of abortion in women. In 2012, in Artavia Murillo v. Costa Rica, he stated that the protection of the embryo was “gradual and not absolute.” “The embryo cannot be understood as a person,” reads this sentence. Eleven years after this proclamation, however, the firmness of the judgments is not universal. Especially in countries where church and conservatism are as important as in Central America.
“We need to discuss access to voluntary abortion based on evidence, not opinion,” Marcia Aguiluz, legal director for Latin America at Women’s Link Worldwide, says over the phone. “The trend on the continent is towards decriminalization, but in Central America the changes are coming more slowly.” That is why the continent’s feminist organizations are pinning their hopes on the decision of this court.