Human Rights Watch Amicus Curiae in Case Beatriz and others V. El Salvador

New York City, April 7, 2023

Honorable Justice Ricardo Pérez Manrique

President of the Inter-American Court of Human Rights

San Jose – COSTA RICA 
 

Subject: Human Rights Watch Amicus Curiae in Case Beatriz and others V. El Salvador

Macarena Saéz, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, NY 110118, United States, present this amicus curiae brief to the Inter-American Court of Human Rights in the case of Beatriz and others v. El Salvador, which concerns the State's international responsibility for violations of the rights of Beatriz and her family caused by the absolute abortion ban. This ban prevented Beatriz from having access to a legal and timely termination of her pregnancy in a situation where her life, health, and personal integrity were all at risk and where the fetus had no chance of surviving outside the womb. 

1. Purpose and Summary of this Submission

Human Rights Watch respectfully requests that the Inter-American Court of Human Rights accepts this submission for its consideration regarding the international legal standards related to its deliberations on the compatibility of El Salvador’s absolute prohibition on abortion with its human rights obligations, particularly in cases of risk to the life, health, and physical integrity of the pregnant person and when the fetus will not survive outside the womb.

With this amicus curiae brief, Human Rights Watch wishes to demonstrate the need, in line with international legal obligations, for states to remove barriers that prevent access to legal abortion, particularly in cases of risk to the life, health, and integrity of the pregnant person or when the fetus cannot survive outside the womb. Indeed, El Salvador’s laws and jurisprudence should comply with its international human rights obligations to decriminalize abortion at least in cases of risk to the life, health and integrity of the pregnant person or when the fetus cannot survive outside of the womb. After providing background on Human Rights Watch and our interest in the case (Section II), we describe the facts and context of the case (Section III). We then review international human rights law and standards related to abortion (Section IV), including with respect to:

1. The right to life
2. The right to health
3. The right to humane treatment
4. The right to nondiscrimination

Finally, in light of these international law and standards, we suggest that the Inter-American Court of Human Rights uphold the right of effective access to legal abortion in cases of risk to the life, health and integrity of the pregnant person or when the fetus cannot survive outside of the womb (Section V).

1. Background on Human Rights Watch and Our Interest in the Case
2. History and Mandate of Human Rights Watch

Human Rights Watch is a nonprofit, nongovernmental organization that investigates and reports on human rights violations and abuses in more than 100 countries worldwide, including El Salvador, with the goal of securing the enjoyment of those rights for all persons. By exposing and calling attention to human rights abuses committed by both state and non-state actors, Human Rights Watch seeks to bring international public opinion to bear on offending governments and others to end abusive practices.

Human Rights Watch is known for accurate and impartial fact-finding. To ensure its independence, the organization does not accept any government funding, directly or indirectly, or support from private funding that could compromise its objectivity in reporting on human rights violations and abuses.

2. Human Rights Watch’s Work on Sexual and Reproductive Rights

Over the past 15 years, Human Rights Watch has published several reports on the global impact of the criminalization of abortion, including in Latin America and the Caribbean.[1] In all cases, we have determined that legal frameworks that criminalize abortion create an environment in which women and girls resort to unsafe procedures that endanger their health and lives.[2]

Abortion restrictions do not stop abortions. Instead, they push women and girls who are seeking abortions, especially those in poverty and who live in rural areas, out of the national health system and into unsafe, unregulated settings. According to the World Health Organization (WHO), the rate of unsafe abortions is four times higher in countries with restrictive abortion laws than in countries where abortion is legal and accessible.[3] WHO has also found that the lack of access to safe, affordable, timely, and respectful abortion care, coupled with the stigma associated with abortion, pose risks to women’s physical and mental well-being over the course of their lives.[4]

States’ international legal obligations to respect, protect, and fulfill human rights includes areas of sexual and reproductive health and autonomy. Where safe and legal abortion services are unreasonably restricted or not fully available, a variety of human rights may be at risk, including the rights to life; health; information; non-discrimination and equality; freedom from cruel, inhuman and degrading treatment; to privacy; decide the number and spacing of children; security of person; liberty; enjoy the benefits of scientific progress; and freedom of conscience and religion.

 As part of its mandate, Human Rights Watch uses judicial and quasi-judicial tools of regional and international law to contribute to protecting and promoting human rights. Therefore, our interest in submitting this amicus brief is to provide the Court with information about international human rights law relevant to this case so that its assessment of El Salvador’s and others OAS states’ international obligations on access to abortion under the American Convention for Human Rights is conducted together with standards from other international legal sources, in particular international human rights treaties, on this issue.

1. Facts and Context

The case before the Court pertains to Beatriz, a Salvadoran woman from a rural community in Usulután, 22 years old at the time of the events, whose human rights, including the rights to life, humane treatment, judicial guarantees, privacy, equality before the law, and judicial protection, were violated.[5]

At the age of 19, she was diagnosed with systemic lupus erythematosus aggravated by lupus nephropathy and rheumatoid arthritis. In 2011, she experienced a high-risk pregnancy that exacerbated her health condition, and she had a C-section after which a pre-term baby boy was born with respiratory distress syndrome and necrotizing enterocolitis.

In February 2013, Beatriz was again diagnosed with a high-risk pregnancy, at 11 weeks, when she went to the hospital for lupus-related injuries and, in March, an ultrasound reported anencephaly, a congenital malformation that makes the fetus unable to survive outside the womb. Upon learning that the fetus had no prognosis for survival and of the possible complications for her health, Beatriz requested the termination of the pregnancy. The treating physicians referred the case to the Medical Committee of the Dr. Raúl Arguello Escalón National Maternity Hospital, which also recommended the termination of the pregnancy.

Because abortion is illegal in El Salvador in all circumstances, the Medical Committee and the hospital authorities initiated a series of institutional consultations, and thus began a complex legal process in which the Attorney General's Office, the Ministry of Health, and the Board for the Protection of Children and Adolescents of San Salvador intervened. Amid this process, on April 11, 2013, Beatriz filed a petition before the Constitutional Chamber of the Supreme Court of Justice and requested precautionary measures from the Inter-American Commission on Human Rights (IACHR), which were granted on April 29.[6] Since the State did not adopt these measures, on May 20 Beatriz asked the IACHR to request provisional measures from this Court.

On May 29, the Constitutional Chamber denied Beatriz’s petition for amparo on the grounds that the actions of the medical personnel were guaranteeing Beatriz's rights to health and life, by hospitalizing her, monitoring her health, and supplying her with the necessary medications. In addition, they argued that in El Salvador there is an absolute impediment to authorize the practice of an abortion because it contravenes the constitutional protection of life from its conception. That same day, this Court granted Beatriz provisional measures and in response, on June 3, she underwent a C-section, which resulted in the birth of a baby girl that died five hours later.[7]

In September 2013, Beatriz presented her case before the IACHR, together with the organizations Colectiva Feminista para el Desarrollo Local de El Salvador, Agrupación Ciudadana por la Despenalización del Aborto de El Salvador, Ipas Latin America and Centro por la Justicia y el Derecho Internacional. The petition was admitted in September 2017, a month before Beatriz passed away at age 27 due to health complications as a result of a traffic accident.

On March 3, 2020, the IACHR issued its Merits Report, where it concluded that the State of El Salvador is liable for violating the rights to life, humane treatment, judicial guarantees, privacy, equality before the law, judicial protection, and health held in the American Convention (Articles 1.1 and 2), as well as the need to ensure that rights are progressive. The IACHR also found that the State of El Salvador is liable for violating Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture and Article 7 of the Convention of Belém do Pará, which entails an obligation for States to prevent and punish violence against women.[8] On January 5, 2022, the Beatriz case was referred by the Inter-American Commission for Human Rights to this Court and the respective Public Hearing was held in San José, Costa Rica, on March 22 and 23, 2023.

1. International Human Rights Law and Standards Related to Abortion

Access to safe abortion is a human rights imperative. Authoritative interpretations of international human rights law have established that denying women and girls access to abortion is a form of discrimination and jeopardizes a range of human rights. UN human rights treaty bodies have regularly called for governments to decriminalize abortion in all cases; at minimum, to legalize abortion in certain circumstances; and to ensure access to safe, legal abortion.[9]

The Inter-American System of Human Rights has raised concerns about restrictive abortion laws. In 2018, the Inter-American Commission of Human Rights (IACHR) urged states parties “to adopt legislation designed to ensure that women can effectively exercise their sexual and reproductive rights, with the understanding that denying the voluntary interruption of pregnancy in certain circumstances constitutes a violation of the fundamental rights of women, girls, and female adolescents.”[10] Similarly, in its 2019 report on Violence and Discrimination against Women, Girls and Adolescents, the IACHR noted that the “the denial of legal abortions would constitute a violation of the fundamental rights for women, girls, and adolescents.”[11]

Furthermore, this Court has established in a recent ruling that healthcare staff can no longer refer women and girls who go to hospitals seeking abortion care and other reproductive health services to law enforcement.[12]

The UN Special Rapporteur on the right to health has also stated that criminal laws penalizing and restricting induced abortion are “impermissible barriers to the realization of women’s right to health and must be eliminated.”[13] He noted:

Realization of the right to health requires the removal of barriers that interfere with individual decision-making on health-related issues and with access to health services, education, and information, in particular on health conditions that only affect women and girls. In cases where a barrier is created by a criminal law or other legal restriction, it is the obligation of the State to remove it. The removal of such laws and legal restrictions is not subject to resource constraints and can thus not be seen as requiring only progressive realization. Barriers arising from criminal laws and other laws and policies affecting sexual and reproductive health must therefore be immediately removed in order to ensure full enjoyment of the right to health.[14]

This amicus brief overviews the key international human rights that are at risk when abortion is inaccessible, particularly in cases of risk to the life, health, and integrity of the pregnant person or when the fetus cannot survive outside the womb: the rights to life, to health, to privacy, and to be free from torture and other cruel, inhuman, or degrading treatment or punishment.

El Salvador is obligated to respect, protect, and fulfill the rights guaranteed under the American Convention on Human Rights.[15] For El Salvador to meet its obligations under the Convention, it must ensure abortion is safe, legal, and accessible, at least in cases in cases of risk to the life, health, and integrity of the pregnant person or when the fetus would not survive outside of the womb. In 2022, the Inter-American Commission for Human Rights concluded that the State of El Salvador is liable for violating the rights under the American Convention, including to life, to be free from inhumane treatment, judicial guarantees, privacy, equality before the law, judicial protection, to health, as well as the need to ensure that rights are progressive. The IACHR also found that the State of El Salvador is liable for violating Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture and Article 7 of the Convention of Belém do Pará, which entail an obligation for States to prevent and punish violence against women.[16]

1. The Right to Life

Denial of access to safe, legal abortion puts the lives of women and girls at risk. A 2017 global report on abortion found that 25 million unsafe abortions were performed every year between 2010 and 2014, and that many women and girls die of complications. It found that between 8 to 11 percent of maternal deaths around the world relate to abortion, resulting in 22,800 to 31,000 preventable deaths each year.[17] The World Health Organization has noted that that the removal of restrictions on abortion results in reduction of maternal mortality.[18]

The right to life is guaranteed by Art. 4 of the American Convention on Human Rights: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”[19]

International human rights bodies and experts have repeatedly stated that restrictive abortion laws contribute to maternal deaths from unsafe abortions and jeopardize the right to life. For instance, the UN Human Rights Committee (HRC), which monitors states’ compliance with the International Covenant on Civil and Political Rights (ICCPR), has explained that the right to life should not be understood in a restrictive manner.[20] It has instructed states that when they report to the Committee, they should provide information on measures to ensure that women do not have to undergo life-threatening, clandestine abortions.[21] In October 30, 2018, the HRC adopted its general comment on the right to life, which emphasizes that any regulation of abortion must not violate the right to life, or any human right under the ICCPR, of a pregnant woman or girl. It calls on states to eliminate barriers to safe and legal abortion, and to ensure that any restrictions do not subject pregnant women and girls to physical or mental pain or suffering. It calls on governments to “provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable.”[22]

In country-specific concluding observations related to states’ compliance with the ICCPR, the HRC has noted the relationship between restrictive abortion laws and threats to women’s and girls’ lives. It has frequently expressed concern about criminalization of abortion, and has called for expanded exceptions.[23] In concluding observations to El Salvador, the Committee urged the State to amend its abortion legislation “as a matter of urgency in order to guarantee safe, legal, and effective access to voluntary termination of pregnancy where the life or health of the pregnant woman or girl is at risk or where carrying the pregnancy to term could cause the pregnant woman or girl substantial harm or suffering, especially in cases where the pregnancy is the result of rape or incest or when it is non-viable.”[24]

The HRC has also called on states to guarantee unimpeded and timely access to legal abortion services, saying that states should “ensure the availability of medical facilities and guaranteed access to those facilities for legal abortion.”[25] It has called for measures such as establishing referral systems for women seeking abortion services, publishing public health guidelines on abortion, facilitating access to information on legal abortions, lifting requirements for prior court authorization for abortions, removing requirements for multiple medical authorizations, combatting the stigma related to abortion, and considering incorporation of abortion into national health insurance schemes.[26]

The IACHR rapporteur on the rights of women criticized the fact that women in the region face “very significant obstacles in exercising their sexual and reproductive rights” and are forced to “continue pregnancies that put their lives at risk” due to restrictive abortion legislation.[27]

a. The state interest in protecting prenatal life cannot supersede the state obligation to protect human rights

In its ruling in Artavia Murillo v. Costa Rica, this Court held that an embryo cannot be understood as a human being for the purposes of Article 4.1 of the American Convention.[28] This Court concluded that, in regulating abortion, the protection of prenatal life is not absolute,[29] observing:

it can be concluded from the words ‘in general’ that the protection of the right to life under this provision is not absolute, but rather gradual and incremental according to its development, since it is not an absolute and unconditional obligation, but entails understanding that exceptions to the general rule are admissible.[30]

Additionally, this Court recognized that the decision to become a parent forms part of the right to private life and that personal autonomy, reproductive freedom, and physical and psychological integrity are interconnected.[31] This Court’s ruling in Artavia Murillo is a clear affirmation and recognition of women and girls as rights-holders whose privacy and autonomy, among other rights, must be respected.

2. The Right to Health

WHO has defined health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” and “one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”[32]

The right to health, both physical and mental, is protected in numerous international human rights treaties.[33] For example, the ICESCR guarantees everyone the right to the highest attainable standard of physical and mental health[34] and CEDAW provides “states Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services.”[35]

According to the Office of the High Commissioner for Human Rights, women’s sexual and reproductive health is related to the right to health more generally as well as multiple other human rights, including the rights to life, freedom from torture, health, privacy, education, and non-discrimination.[36] International bodies have repeatedly stated that the criminalization of abortion or unreasonable restrictions on access to abortion violate the right to health. In fact, the CESCR stated that “States must reform laws that impede the exercise of the right to sexual and reproductive health. Examples include laws criminalizing abortion.”[37]

Beatriz was diagnosed with a high-risk pregnancy. El Salvador’s absolute ban on abortion violated her right to health by forcing her to continue a pregnancy that carried serious risks to her mental and physical health.

3. The Right to Humane Treatment

The right to humane treatment, including the right to be free from torture or from other cruel, inhuman, or degrading treatment or punishment, is protected by the American Convention on Human Rights.[38] Criminalization and inaccessibility of abortion are incompatible with the right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment.

Denial of access to abortion can have serious and lasting consequences for a pregnant person’s health and well-being.[39] The UN Committee against Torture has expressed concern at the severe physical and mental anguish and distress experienced by women and girls due to abortion restrictions, and concluded that criminalization and inaccessibility of abortion can be incompatible with a government’s duty to uphold the right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment.

The Committee has called on governments to “allow for legal exception to the prohibition of abortion in specific circumstances in which the continuation of pregnancy is likely to result in severe pain and suffering, such as when the pregnancy is the result of rape or incest or in cases of fatal fetal impairment.”[40] It has also criticized restrictions on access to legal abortions in cases in which laws are unclear, abortions require third-party authorizations, or physicians or clinics refuse to perform abortions on the basis of conscientious objection.[41]

Similarly, the Human Rights Committee has found in individual cases against Ireland, Peru, and Argentina that the governments violated the right to freedom from torture or other cruel, inhuman, or degrading treatment by failing to ensure access to abortion services in these cases.[42] It pointed out that this right relates not only to physical pain but also to mental suffering.[43]

The CEDAW Committee has also described criminalization of abortion and denial or delay of access to legal abortion as “forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.”[44] Similarly, the Committee on Economic, Social and Cultural Rights has also said that denial of abortion “in certain circumstances can amount to torture or cruel, inhuman or degrading treatment.”[45]

The UN Special Rapporteur on Torture has criticized highly restrictive abortion laws that prohibit abortion in all cases[46] He continued:

The denial of safe abortions and subjecting women and girls to humiliating and judgmental attitudes in such contexts of extreme vulnerability and where timely health care is essential amount to torture or ill-treatment. States have an affirmative obligation to reform restrictive abortion legislation that perpetuates torture and ill-treatment by denying women safe access and care….[47]

Furthermore, the Committee of Experts of the Follow-up Mechanism to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women noted that laws that establish an absolute prohibition of abortion “perpetuate the exercise of violence against women, girls and adolescents … and violate the prohibition of torture and mistreatment.”[48] The committee concluded that states should establish “laws and policies that enable the termination of pregnancy at the very least in the following cases: i) risk to the life or health of the woman; ii) inability of the fetus to survive; and iii) sexual violence, incest and forced insemination.”[49]

El Salvador is liable for violating Beatriz’s right to humane treatment because it failed to provide Beatriz with the opportunity to terminate her pregnancy safely and without delay. Beatriz had a 26-week pregnancy, and her personal integrity was affected by the uncertainty of her future, the refusal to carry out her wishes and being forced to give birth and face mourning due to the fetus’ incompatibility with life outside of the womb.

4. Right to nondiscrimination

The right to nondiscrimination is set forth in the American Convention on Human Rights.[50] CEDAW prohibits discrimination against women in all spheres, including in the field of health care. It requires that states “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”[51]

In a 2014 statement, the CEDAW Committee observed that “failure of a State party to provide services and the criminalization of some services that only women require is a violation of women's reproductive rights and constitutes discrimination against them.”[52] In its General Recommendation on women and health, the CEDAW Committee noted that “barriers to women’s access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo these procedures.”[53] Furthermore, in country-specific concluding observations, the CEDAW Committee has often stated that restrictive abortion laws constitute discrimination against women.[54]

Moreover, the Human Rights Committee has held that lack of availability of reproductive health information and services, including abortion, undermines women’s right to nondiscrimination.[55] The Committee on Economic, Social and Cultural Rights has said, “A wide range of laws, policies and practices undermine the autonomy and right to equality and non-discrimination in the full enjoyment of the right to sexual and reproductive health, for example criminalization of abortion or restrictive abortion laws.”[56] It has also noted that abortion restrictions particularly affect poor and less educated women.[57]

The Inter-American Commission on Human Rights has expressed that limitations on accessing health services that are required only by women, including therapeutic abortion, generate inequalities between men and women with respect to the enjoyment of their rights.[58]

Petition

For the abovementioned reasons, we respectfully request this Court to:

1. Accept Human Rights Watch as a Friend of the Court in this case, and

2. Uphold the right of effective access to legal abortion in cases of risk to the life, health and integrity of the pregnant person or when the fetus would not survive outside the womb.

Sincerely,

Macarena Saez

Executive Director,

Human Rights Watch Women’s Rights Division