By Ciara O’Connell
University of Sussex
On January 21, 2015, Guadalupe, a Salvadoran woman sentenced to thirty years imprisonment after suffering a miscarriage, was pardoned seven years into her sentence. Guadalupe was one of a group of 17 women who are imprisoned in El Salvador as a result of obstetric complications, where the women have been found guilty of attempting to abort their pregnancies. There is a complete ban on abortion in El Salvador, which means that even women who are raped or whose health is at a significant risk cannot abort a pregnancy. It also means that a pregnancy resulting in a malformed foetus that cannot survive outside the womb will not be terminated. For women in El Salvador, the ban on abortion is not only a violation of reproductive rights to health and autonomy, but in some situations may even take on characteristics of torture.
The international community has taken notice of the draconian abortion laws in El Salvador, and has formulated strategies to address them and their repercussions. NGOs such as the Center for Reproductive Rights and Agrupación Ciudadana recently collaborated on the “Las 17” campaign, which seeks to free the women imprisoned for “crimes” related to obstetric complications. In 2013, the Inter-American System of Human Rights challenged El Salvador’s repressive abortion laws. It issued a provisional measure in the case of “B,” a young woman who suffered from lupus and was pregnant with an anencephalic foetus. In its provisional measure the Inter-American Court required that the State of El Salvador “ensure adequate protection of the rights enshrined in Articles 4 and 5 of the American Convention, thus avoiding damage and irreparable harm to the rights to life, personal integrity and health of Ms. ‘B’.” Efforts such as these have proven to be effective, if only minimally; Guadalupe will soon be free and hopefully more imprisoned women will be too, and although “B” was not permitted to have an abortion, her case drew international attention to the situation for women in El Salvador.
Abortion in El Salvador is just one of the numerous examples of obstacles that women face in the Inter-American region in terms of accessing and enjoying their reproductive rights. Actors engaged in the work of women’s reproductive rights have consistently pushed for reform, and have done so by using tools available to them at local, national and international levels. Women’s reproductive rights advocates were successful before both the UN Human Rights Committee and the Committee on the Elimination of all Forms of Discrimination Against Women, where Peru was held responsible for violations of women’s reproductive rights to abortion, serving as the impetus for Peru’s Therapeutic Abortion Protocol in 2014. The Inter-American System of Human Rights has also proven to be an effective venue to confront violations of women’s reproductive rights. In 2012, before the “B” provisional measure, the Inter-American Court issued a judgment in an in vitro fertilization case that included an expansive definition of reproductive health, and also linked privacy and integrity to reproductive autonomy.
However, despite these advancements there remain significant challenges in how actors engage with international human rights bodies. For example, in the recent in vitro fertilization case before the Inter-American Court of Human Rights, Artavia Murillo et al. (“Invitro Fertilization”) v. Costa Rica, the litigators focused on both the right to form a family and reproductive disability, while failing to frame in vitro fertilization within its larger context as a reproductive right. Indeed, the intention behind the litigation in this case was not to promote or fulfil women’s reproductive rights. Huberth May, one of the litigators involved, explained: “I think that if we had to begin again we would include the reproductive rights and use the trial as an opportunity to help Costa Rican society progress… I believe the trial was not planned to go in that direction… issues like abortion, contraception, and topics related to women’s autonomy and right to decide about procreation, sex, etc…. I believe we could have taken more advantage of this case.”
There are also potential problems with the arguments and reasoning developed in women’s reproductive rights cases and activism where these may unintentionally limit women’s reproductive rights in the future. In reproductive rights litigation and campaigns a heavy emphasis is placed on the health, whether physical or mental, of the woman, and not necessarily on her right to choose and her right to autonomy. In most situations this is strategic – focusing on “B’s” right to life and health is not as contentious as is her right to make decisions about her own body. However, the right to health argument does have its limitations. When members of civil society and litigators emphasize the role of health over the role of autonomy the burden of proof is passed on to the woman – is she healthy? Is she experiencing mental health issues by carrying an anencephalic foetus to full term? Because most countries in the Inter-American region have laws on the books to allow for abortions when a woman’s life or health is at risk, activists and litigators have worked within these confines. However, in neglecting to draw links to autonomy and decision-making, these types of efforts limit future advancements – where a woman can exercise her right to make decisions about her body without first being deemed unhealthy or at risk.
While women’s reproductive rights are under attack across the Americas and the globe, cases such as Guadalupe’s serve as a reminder that activism has the potential to achieve justice. However, it is essential that actors engaged in the work of women’s reproductive rights continue to explore and reinvent the legal tools available to them, always with the goal of advancing women’s rights to reproductive autonomy, dignity and health.
The conclusions discussed in this post are treated in more detail in a report entitled, “Women’s Reproductive Rights in the Inter-American System of Human Rights Conclusions from the Field, June – September 2014,” C. O’Connell, 2015, available in English and Spanish.
 See Women’s Reproductive Rights in the Inter-American System of Human Rights Conclusions from the Field, June – September 2014, p. 9.
 See “Women’s Reproductive Rights in the Inter-American System of Human Rights Conclusions from the Field, June – September 2014, p. 8.