The Gender Security Project
Beatriz v. El Salvador Case Could Set Precedent on Abortion in Latin America
By Edgardo Ayala
On Mar. 22, 2023, dozens of people watched a live broadcast from San José, Costa Rica, on a large screen at the University of El Salvador, in San Salvador, of the open hearing of the Inter-American Court of Human Rights, listening to the testimony of witnesses in the Beatriz v. El Salvador case. The screenshot shows Beatriz's mother giving her testimony. CREDIT: Edgardo Ayala/IPS
An open hearing in the Inter-American Court of Human Rights in the Beatriz v. El Salvador case is raising hopes that this country and other Latin American nations might overturn or at least mitigate the severe laws that criminalize abortion.
That will happen if the Inter-American Court rules that El Salvador violated the right to health of Beatriz, as the plaintiff is known. In 2013 she sought to have her pregnancy terminated because it was high risk and her life was in danger.
But she was not given an abortion, only a tardy cesarean section, which affected her already deteriorated health and, according to the plaintiffs, eventually led to her death in October 2017.
The hearing on the emblematic case was held Mar. 22-23 at the Inter-American Court in San José, Costa Rica. Beatriz’s case builds on similar ones: the cases of Amelia, also from El Salvador, Esperanza from the Dominican Republic, and Amelia from Nicaragua.
The seven judges heard the arguments of the plaintiffs, the representatives of the Salvadoran State and the witnesses on both sides.
After the hearing, the parties have 30 days to deliver their written arguments and the magistrates will then take several months to debate and reach a resolution.
A historic case
“I hope that in the end my daughter’s name will be vindicated, and that what happened to her will not happen again to any other woman,” Beatriz’s mother said when testifying on the stand. Her name was not revealed in court.
The hearing has drawn international attention because it is considered historic for the sexual and reproductive rights of women in a region that is especially restrictive with regard to the practice of abortion.
“This will be the first case where the Court will rule on the absolute prohibition of the voluntary interruption of pregnancy, particularly regarding the risk to health and when the fetus is nonviable,” Julissa Mantilla Falcón, from the Inter-American Commission on Human Rights (IACHR), told the Inter-American Court.
Beatriz turned to the IACHR when the Constitutional Court of El Salvador denied, on Apr. 11, 2013, her request for an abortion.
On Apr. 19, the IACHR issued a precautionary measure in favor of Beatriz, and on May 27, 2013, it asked the Inter-American Court to adopt provisional measures which would be binding on the State.
In its November 2020 Merits Report, the IACHR established that the Salvadoran State was responsible for the disproportionate impact on various rights of Beatriz, by failing to provide her with timely medical treatment due to the laws that criminalize abortion.
The IACHR identified the disproportionate impact of this legislation on Salvadoran women and girls, especially the poor.
The Commission stated that it did not expect full compliance by the State with the recommendations of the report, and therefore referred the case to the Inter-American Court, which now, ten years later, is a few months away from handing down a resolution.
For her part, Anabel Recinos, from the Citizen Association for the Decriminalization of Abortion, one of the Salvadoran organizations that are co-plaintiffs in the case, told IPS that she hopes that the Inter-American Court ruling will set a new precedent.
She said her hope is that the court will rule that laws in El Salvador and the region banning abortion under all circumstances must be modified.
In addition to El Salvador, Honduras, Nicaragua and the Dominican Republic are the countries in the region where abortion is completely prohibited in their penal codes. It is only legal in five countries in Latin America, while it is allowed only in strict circumstances in the rest.
“Or at least it should be allowed for specific reasons or exceptions, such as safeguarding health and life, or the incompatibility of the fetus’s life outside the womb,” Recinos said.
Twenty Latin American and Caribbean countries recognize the jurisdiction of the Inter-American Court: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay.
The IACHR and the Court make up the inter-American human rights system. They are independent bodies and in the case of the Court the sentences are final and binding, although they are not always enforced.
Recinos spoke to IPS at the University of El Salvador, in the country’s capital, where dozens of people gathered to watch the hearing, broadcast live from San José, on a large screen.
The activist added that it is likely that the Court will rule against the Salvadoran State, backing the IACHR’s conclusions.
The Court is made up of judges Ricardo Pérez Manrique (Uruguay), Humberto Sierra Porto (Colombia), Eduardo Ferrer Mac-Gregor (Mexico), Rodrigo Mudrovitsch (Brazil), Nancy Hernández López (Colombia) and Verónica Gómez (Argentina).
In March 2003, Beatriz requested an abortion during her second pregnancy, because she suffered from lupus, an autoimmune disease in which the body’s immune system mistakenly attacks healthy organs, and preeclampsia, a dangerous increase in blood pressure during pregnancy, as well as other health problems.
In other words, her life was at risk. In addition, the fetus had malformations and would not live long at birth.
However, the medical personnel, although they were aware that an abortion was indicated to save Beatriz’s life, did not carry it out due to the fear of prosecution.
Beatriz was forced to continue with a pregnancy that continued to harm her health as the days went by.
But after the Inter-American Court granted provisional measures, Beatriz underwent a cesarean section on Jun. 3, 2013, almost three months after requesting an abortion.
The child, who was born with anencephaly, missing parts of the brain and skull, died just five hours later.
Misogyny on the part of the State
Since 1998 El Salvador, this Central American country of 6.7 million inhabitants, has been the most drastic in the region in the persecution of abortion, punishing women who terminate their pregnancies with sentences of up to 30 years, in all cases, even when the life and health of the pregnant woman is at risk or in cases of rape.
The legislation mainly affects poor women in rural areas. According to data from women’s rights organizations, 181 such cases have been prosecuted since 2019.
Guillermo Ortiz, a gynecologist and obstetrician who specializes in high-risk pregnancies, testified before the Inter-American Court: “Yes, I saw many women die because they did not have access to a safe abortion, despite my having requested it.”
In her testimony, Beatriz’s mother said that the many doctors who treated her daughter had recommended that the pregnancy be terminated, but did not dare to perform an abortion or c-section to remove the fetus, for fear of going to prison.
“They told my daughter that they couldn’t, because in El Salvador it’s a crime, and if they did, they could go to jail,” said the mother.
“The State failed Beatriz twice,” said the mother, before breaking down in tears.
She was referring to the failure to carry out an abortion promptly, despite her daughter’s serious health conditions. She also was talking about a motorcycle accident that the 22-year-old suffered later.
“She had an accident that shouldn’t have been fatal, she was in stable condition” when she was admitted to the hospital in Jiquilisco, a municipality in the eastern department of Usulután.
But a storm caused a flood in some parts of the hospital, so they transferred her to the hospital in Usulután, the capital of the department.
“The doctor who treated her there didn’t even know what lupus was,” she said. In the hospital, Beatriz caught pneumonia.
The mother’s testimony and that of the other witnesses at the hearing has been closely followed in El Salvador and other nations by feminist and human rights organizations that have been monitoring and criticizing the country’s strict anti-abortion law.
This post first appeared on IPS News.