Manuela (a pseudonym) was a single mother of two from rural El Salvador. She had limited economic resources and could not read or write. In 2007, Manuela began experiencing severe health problems, which despite visits to the local clinic, remained undiagnosed and untreated. In February 2008, Manuela suffered an obstetric emergency and was rushed to the hospital. Upon her arrival, she was confronted by hostile physicians who filed a police report accusing Manuela of self-inducing an abortion. While in recovery, she was interrogated by police officers without an attorney present and was handcuffed to her bed. She was not privy to the proceedings and no one ever explained the charges to her. Her parents were also coerced to denounce their daughter. The first hearing was conducted without her being present.
On July 31, 2008, the Trial Court of San Francisco Gotera convicted Manuela and sentenced her to 30 years in prison for aggravated murder. Manuela’s health continued to decline in custody, until she was diagnosed with Hodgkin’s lymphoma in 2009. Manuela passed away while still imprisoned on April 30, 2020, at the age of 33.
El Salvador’s criminal abortion law
Under El Salvador’s Criminal Code, causing an abortion, consenting to another person causing your abortion, inducing or assisting in an abortion and even cases of “negligent abortion” are all criminal offenses. Prior to 1998 abortion was permitted to protect the life of the pregnant person, when the pregnancy was the product of a crime, and in cases of fetal anomaly where the fetus cannot survive outside the womb. In 1998, the government modified the Criminal Code to ban abortion completely. This has led doctors to report emergency cases where they suspect an abortion has been performed, even without actual evidence, to avoid being considered co-conspirators, accomplices, or instigators under Salvadoran law. Furthermore, El Salvador’s Health, Family and Civil Codes explicitly protect the fetus as of the moment of conception, creating tension between the rights of the fetus and those of women and girls.
The violations in criminal proceedings that culminated in the conviction of Manuela for the alleged crime of aggravated murder led the Inter-American Commission on Human Rights (IACHR) to file an application with the Inter-American Court of Human Rights (IACtHR) on behalf of Manuela and her family. According to the IACHR, El Salvador violated the following rights: (i) right to personal liberty; (ii) right to not be arbitrarily deprived of liberty, presumption of innocence, and judicial protection; (iii) right to defense and judicial protection; (iv) right to appeal the adverse ruling; (v) right to privacy and healthcare; (vi) right to life, health, and judicial guarantees; and (vii) violation of the duty to provide a reason for its decisions, the presumption of innocence and the principles of equality and nondiscrimination.
The amicus brief
A group of human rights non-governmental organizations (including IANGEL), university clinics, and experts, filed an amicus brief to support Manuela’s and her family’s petitions before the IACtHR. Amici argue that El Salvador’s criminal abortion regime enables criminal punishment of women who experience a range of pregnancy outcomes, including abortions and miscarriages. The brief argues that the legal regime is both inherently discriminatory and disparately impacts women and girls, particularly those from socioeconomically vulnerable backgrounds with already limited access to healthcare. This is in clear violation of the American Convention on Human Rights, as well as other human rights instruments, such as the Convention on the Elimination on All Forms of Discrimination Against Women CEDAW, and the Protocol of San Salvador.
The amicus brief underscores the intersecting forms of discrimination against women and girls that El Salvador’s legal framework promotes. The State’s failure to ensure the protection and enjoyment of other human rights (including access to health care, education, and freedom from violence) results in an increased risk of becoming pregnant and experiencing pregnancy complications. In tandem with healthcare providers’ scrutiny and reporting of pregnancy-related complications, women and girls often receive poor quality medical care and face substantial abuse based on stereotypes. Essentially, Amici claim women and girls are being criminalized for health outcomes that result from a lifetime of gender and economic-based marginalization.
The brief also points out that El Salvador’s total abortion ban is based on and perpetuates patriarchal and discriminatory gender roles, amounting to gender discrimination under the American Convention. Applying an intersectional lens reveals the underlying power dynamics and discriminatory effects of the law on marginalized women and girls. Therefore, Amici urge the IACtHR to find that El Salvador violated its duties under articles 1(1), 2, 4(1), 5, 11, 24, and 26 of the American Convention, among other provisions, and recommend that El Salvador take immediate action to remedy those violations by reforming the criminal abortion ban, and awarding monetary compensation to Manuela’s family for the human rights violations they have sustained.
What now?
In 2017, CEDAW issued concluding observations on the combined eighth and ninth periodic reports of El Salvador. The Committee voiced its concerns about the absolute criminalization of abortion, prosecution of women, long periods of pre-trial detention, disproportionate criminal penalties, and incarceration immediately after experiencing a pregnancy-related emergency. The Committee recommended that the State review the Criminal Code to legalize abortion, at least in cases of rape, incest, threats to life and/or health of the pregnant woman, or severe fetal impairment. It also mentioned the need to ensure professional secrecy for health personnel and patient confidentiality.
On March 10 and 11, 2021, the IACtHR held public hearings in the Manuela case. Expert witness testimony about the nature of the pregnancy complications related to the case was presented. Medical experts underscored the poor quality and delayed service provided to Manuela, and the increased risk of negative health outcomes due to her previously undiagnosed and untreated health conditions. Experts also highlighted the substantial harms created by medical personnel’s reports of “suspected” abortions, often without any significant proof. They noted how stereotypes informed Manuela’s treatment and judicial proceedings because health care providers assumed both her culpability and her expected role as a woman (mother, caretaker, self-sacrificing).
El Salvador has an estimated stillbirth rate 50% higher than the estimated rate for the region, and the rate increases among vulnerable women who experience economic hardships, poor nutrition, lack of education, exposure to systemic violence, and limited access to healthcare. Girls aged 10 to 19 account for nearly a third of all pregnancies in El Salvador and face greater risks of pregnancy complications and poorer outcomes than adults. The discriminatory impact of El Salvador’s abortion law exacerbates these inequalities.
By focusing exclusively on criminalizing abortion, the legal framework fails to address the root causes of unwanted pregnancies and pregnancy-related complications, upholding women and girls’ oppression. The IACtHR now has the opportunity to urge El Salvador to reform its legal framework in a way that embraces international norms and overcomes structural barriers. Advancing gender equality means disrupting the status quo, which in and of itself faces resistance. However, it is the only way towards a fairer and more inclusive world where everyone’s human rights are respected and protected regardless of their gender, race, socioeconomic status, or any other particular condition.