To a unique extent, the Inter-American Court draws on the jurisprudence and standards of other supra-national forums and instruments in international human rights law. There is an overlapping consensus in international law that recognizes severe abortion restrictions as violations of women’s human rights to health, dignity, and freedom from gender-based violence. Moreover, multiple international bodies have already found specifically that El Salvador’s ban violates international standards on the rights to life, health, personal integrity, freedom from cruel and inhuman treatment, and moreover is inherently discriminatory against women.
The Court has a number of options if it strikes down the absolute ban on abortion.
The European Court of Human Rights, which has adopted a largely proceduralist approach to abortion rights, has underscored problems regarding the lack of clear regulatory frameworks that undermine women seeking abortions under regimes of exceptions. The Court could adopt a similar approach in the Beatriz case given that although the Salvadoran Penal Code 99 acres database provides for mitigation of criminal responsibility in abortion-related offenses, there are no clear and objective criteria or procedures to prevent charges from being brought. However, such an exceedingly narrow holding would fall woefully short of capturing the nature of the rights violations in this case.
The Court should instead follow the lead of supra-national human rights bodies, such as the CEDAW Committee, which in addition to lack of legal certainty, have emphasized the gender-based discrimination and gender-based violence underpinning harsh abortion restrictions. The Latin American and Caribbean (LAC) region has extremely high rates of gender-based violence and femicide. In El Salvador specifically, more than two-thirds of women (67.4%) have experienced some type of violence throughout their lifetime; and four out of ten women have suffered sexual violence through their lifetime. Coupled with this exposure to unconsented sex, El Salvador has a high unmet need for contraception and stands out among countries in the region in terms of alarming teenage pregnancy rates.
In this context, the total abortion ban should be understood as part of systemic violence against feminized bodies within the healthcare system. In Manuela, the Inter-Amerian Court went into detail about the ways in which discriminatory gender stereotypes underpinning the application of the ban in El Salvador affected women’s access to care, as well as their due process rights, but did not directly address the legality of the ban itself. The Court should use the Beatriz case to extend the reasoning in Manuela to the gender-based discrimination baked into the absolute ban. By conceptualizing the lethal effects of forced pregnancy as part and parcel of systemic gender-based violence, the Court can build on its record of addressing structural discrimination against women, and in particular poor women.