Human Rights Law and Abortion in El Salvador

Alia Januwalla

Congratulations to Alia Januwalla – this essay is a winner in the Harvard FXB Health and Human Rights Consortium Student Essay Competition 2016. Alia Januwalla, MPH, is a student of Health Promotion at the Dalla Lana School of Public Health, University of Toronto, Canada.

Introduction

In 2013, a pregnant woman named Beatriz was denied the right to a medical abortion by El Salvador’s highest supreme court.1 Beatriz had lupus and kidney disease, and she was told by her medical professionals that not only would the pregnancy be potentially threatening to her health and life, but that the fetus had fatal congenital anomalies and would not survive. Despite multiple human rights bodies condemning El Salvador’s absolute abortion ban and the government’s response to Beatriz’s case, she was never granted access to a therapeutic abortion—even as her health deteriorated. It was not until 27 weeks into her pregnancy that Beatriz was granted a caesarean section.2 Doctors performed the same procedure as they would have for a medical abortion, with the exception that the fetus was put on life support for a few hours before dying. Anti-abortion proponents in El Salvador, including the government, ultimately deemed this outcome a victory, describing it as an induced birth in which the baby died of natural causes. Furthermore, the court delayed granting Beatriz the right to medical intervention until her pregnancy progressed beyond 26 weeks, when the procedure could legally be defined as an induced birth, despite it achieving the same intended outcomes as a medical abortion.3

Beatriz’s case exemplifies the lack of political will to ensure women’s access to safe abortion care even in the most dire of medical circumstances, and has spurred the recent global call to action on ensuring sexual and reproductive rights to women in El Salvador.4 The abortion ban in El Salvador is a blatant violation of internationally recognized rights, including the right to health, life, liberty, and physical integrity. The criminalization of abortion in El Salvador denies women their rights to control their bodies and to access reproductive health services that would enable them to enjoy healthy lives.5

This paper analyzes El Salvador’s absolute abortion ban as a violation of international human rights law. It begins by discussing the harmful health and social consequences of criminalization, and contextualizing the origins and implications of the abortion ban in El Salvador. The paper then analyzes how this ban violates a number of human rights, before concluding with recommendations on how to remediate these violations.

Health effects of abortion criminalization

The World Health Organization (WHO) estimates that 78,000 deaths annually result from unsafe abortions.6 Unsafe abortions account for an estimated 13% of pregnancy-related deaths worldwide and are a preventable cause of maternal mortality.7 This cause of mortality is strongly related to the legality of abortion; research indicates that women living in countries with restrictive abortion laws are more likely to resort to clandestine abortions, which are often unsafe and therefore account for significant rates of mortality.8

The criminalization of abortion contributes to unsafe abortion methods, a lack of medical accountability, and discourages women from seeking post-abortion care.9 First, where abortion is illegal, women may resort to desperate measures, such as attempting to abort their pregnancies by inserting sharp objects into their uteruses or ingesting poison.10 While clandestine abortions are not always life threatening, complications can arise, particularly around inadequate access to medical care. Common complications include hemorrhages, uterine infections, and pelvic inflammatory diseases, often resulting in infertility or difficulties in future pregnancies, and in some cases, death.11 Second, the criminalization of abortion drives the practice underground, resulting in a lack of oversight and regulation over this illegal provision of services.12 Clandestine abortion providers are therefore able to operate without needing to be accountable for the health of their patients.13 Third, out of fear of prosecution, women suffering from abortion-related complications rarely seek post-abortion medical care, increasing their chances of morbidity and mortality.14

Since the International Conference on Population and Development in 1994 first recognized the importance of women’s reproductive and sexual rights, there has a been a trend towards legalizing abortions globally. Only two countries have further restricted their laws since then—one of which is El Salvador.15

Background on El Salvador

El Salvador is a small, densely populated country of just over 6 million, characterized by political instability and economic strife.16 The country experienced a vicious 13-year civil war which officially ended in 1992 after a UN intervention; however, the pervasive culture of violence and corruption that was nurtured during the war has ongoing ramifications in the country.17 El Salvador has high poverty and unemployment rates, with approximately 41% of the country’s population living below the poverty line.18 This is exacerbated by the public’s lack of trust in a corrupt government.19

Civic discontent is perhaps most starkly exhibited by the rates of gang-related homicides: 2014 saw a 70% increase in homicides.20 Gangs are pervasive in El Salvador, their formation and prominence deeply rooted in patriarchal attitudes, particularly around the machista (or macho) culture.21 This culture of exaggerated masculine pride is reinforced by general gender inequalities; men are favoured socially, economically, and politically.22 Consequently, women are granted less access to education and employment opportunities. In 2009, 49.5% of Salvadoran females participated in the labour force, compared to 77% of their male counterparts.23 This disparity suggests inequities in accessing formal employment opportunities, but is also indicative of the ingrained notion of a woman’s social function as a mother.24 This belief is heightened by the influence of the Catholic Church, extending from the private household to the political decision-making sphere; more than 75% of the country’s inhabitants are practising Catholics.25

Prior to 1998, abortions in El Salvador were granted to women if a pregnancy was a result of rape, if a pregnancy threatened the mother’s life, or if the fetus had fatal congenital anomalies.26 However, as the country began to rebuild after the war, the Catholic Church secured a more prominent political influence, particularly over women’s rights to autonomous decisions regarding their bodies.27 The Church launched a targeted and ultimately successful campaign for restrictive abortion laws in order to prevent what they saw as the unjust termination of life in defiance of religious values.

Despite the global commitment at the International Conference on Population and Development just four years prior to prevent unsafe abortion, El Salvador ushered in a total ban on abortions. On April 20, 1998, a new penal code took effect which, due to the success of religious and conservative influences, eliminated any exceptions under which abortion had previously been legal. Eight months later, Article 1 of the Salvadoran Constitution was amended to recognize the right to life from the moment of conception.28 This law not only prevents women from accessing safe abortions, even under therapeutic circumstances, but extends to the criminalization of any suspected abortions. The law allows authorities to prosecute women whose pregnancies end before 40 weeks, including in cases of miscarriages or stillbirths (if suspected of intentional termination or harming the fetus).29 Any person found responsible for terminating or supporting the termination of a pregnancy can face prison sentences of between two and eight years, though some women have been convicted on charges of aggravated homicide and been sentenced up to 30 years.30 Between 2000 and 2011, 129 women were prosecuted for abortion-related crimes, 26 of whom were convicted of aggravated homicide.31

The health and human rights implications of this strict criminalization of abortion are compounded given that like many Latin American countries, El Salvador is experiencing an outbreak of the Zika virus. While Zika is not in itself a life-threatening condition, it has been linked to congenital abnormalities, namely microcephaly, in babies born to mothers who contracted the virus.32 There is currently no vaccine or medical treatment for this mosquito-transmitted virus, so prevention efforts have focused around mosquito control. However, El Salvador has faced backlash internationally for their most controversial Zika strategy, which suggests that all women of fertile age avoid getting pregnant until 2018.33 This is particularly problematic since women in El Salvador do not typically have access to family planning services, such as contraception to prevent pregnancies, or abortions to safely terminate unwanted pregnancies. Zika has called attention to El Salvador’s abortion ban and the country’s persistent violation of sexual and reproductive rights.

Effects of abortion criminalization in El Salvador

Veronica moved to San Salvador to work as a domestic employee when she was an adolescent.34 Having received no sexual health education, she became pregnant but had regular menstrual cycles and never suspected she was pregnant. One day, she fainted and collapsed, only to wake up in a hospital recovery room, handcuffed to her bed, having suffered emergency obstetric complications that led to the death of her fetus. She was promptly informed that she was under arrest for the crime of aggravated homicide, and was subsequently convicted and sentenced to 30 years in prison.35

Veronica’s story is not unique; the abortion ban disproportionately affects the most marginalized and vulnerable people of El Salvador. The Center for Reproductive Rights, a non profit legal advocacy organization, analyzed 129 prosecution cases and found that the majority of the women were young, unmarried, and had a lower socioeconomic status.36 Like Veronica, these women are more likely to be poor, uneducated, and living in rural areas. In short, they are women “who lack the tools to confront the state’s authority”.37

Despite El Salvador’s abortion ban, it is estimated that approximately 19,000 abortions took place between 2005 and 2008.38 However, it is likely that the numbers are actually much higher, as it is difficult to measure the occurrence of clandestine abortions. The abortion ban has significant repercussions for the lives of women in El Salvador; it is estimated to be the second cause of maternal mortality overall, and the third cause of mortality among adolescent girls.39 Furthermore, the Ministry of Health found that suicide among pregnant women, often teenagers, was the third most common cause of maternal mortality, indicating the mental burden that a lack of contraception and abortion care can generate.40

The occurrence of abortions in El Salvador is directly related to the unmet demand for family planning.41 In one survey of married women only, it was found that 66% of the country’s women of childbearing age use some form of modern contraception, and over 35% of respondents using female sterilization.42 These gaps indicate both a lack of knowledge about family planning methods and also inadequate access and affordability of contraceptive methods. Though contraception is part of the National Family Planning Program, it is expensive and difficult to obtain and therefore used less frequently in rural areas.43 Recent surveys have shown a high rate of unplanned and unwanted pregnancies, especially among adolescents and rural women, who have low rates of contraceptive use.44 Furthermore, Catholic and machisto cultural influences have been identified as barriers to family planning.45

International human rights treaties

The total ban on abortion violates a number of human rights, particularly because of its effect on accessing safe abortion methods as well as carrying the risk of prosecution. These recognized rights include rights to life, health and health care, liberty, physical integrity, reproductive freedom and autonomy, privacy, and non-discrimination and equality.46 These rights are enshrined in a number of human rights instruments, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

El Salvador, by ratifying these treaties for the protection of human and women’s rights, has undertaken a legal obligation to protect and guarantee these rights.47 These rights are protected in El Salvador’s Constitution, which guarantees the right to life, liberty, and health.48 Furthermore, the Salvadoran Constitution states that international treaties are considered laws of the country, and that in cases of conflict between provisions of domestic and international law, the latter should prevail.49 As illustrated below, the legislation criminalizing and banning abortion violates both international and domestic obligations to protect human rights.

Right to health

The right to health was first explicitly articulated in ICESCR Article 12(1), which declares: “States must recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”50 CEDAW further refines this right through the lens of women’s rights in Article 12(1): “States 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, including those related to family planning.”51 The abortion ban in El Salvador blatantly disrespects and violates the right to health as defined in both international treaties.

Health is defined as the state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity.52 Therefore the right to health is not limited to receiving access to health care, but extends to the right of freedom to control one’s health and body. Barriers to reproductive health services, such as lack of contraception and legal abortion services, cause unwanted pregnancies and unsafe abortions, both of which result in preventable physical and mental health problems for women.53 When women cannot access safe reproductive health care, they are exposed to the dangers of unsafe abortions, including the risk of severe chronic complications and death. The right to health is also violated when women are denied medical treatment for complications that arise from an unsafe abortion.

The Committee on Economic, Social and Cultural Rights (CESCR) is the expert UN body that supervises the implementation of the right to health as defined in ICESCR Article 12(1).54 CESCR has provided a comprehensive definition of the right to health in General Comment 14, stating that this right includes the “right to control one’s health and body, including sexual and reproductive freedom,” and the “right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.”55 This implies the right to be able to legally access health care and medical attention without fear of persecution, as well as the liberty and autonomy to make decisions over one’s own body.

General Comment 22 most clearly articulates the right to sexual and reproductive health as an integral component of the right to health, among other key civil and political rights.56 The role of abortion access in reducing maternal mortality and morbidity is stressed in paragraphs 28 and 33, which advocate for the liberalization of restrictive abortion laws in order to realize the right to sexual and reproductive health and lower rates of unsafe abortions.

A recent study conducted by the Guttmacher Institute found that the abortion rate in Latin America, which is typically more restrictive than other regions of the world, was 32 per 1,000, whereas in Western Europe, where legislation is decriminalized, the rate was 12 per 1,000, suggesting a correlation between the liberalization of abortion legislation and low abortion rates.57 CESCR has recommended that all States parties should legalize abortions, at least in cases when the pregnancy is a result of rape or incest or when the life of a woman is endangered.58 It calls on states to adopt measures that improve sexual and reproductive health services and to remove barriers to women’s access to health services in order to realize women’s right to health.

Former Special Rapporteur on the right to health, Anand Grover, has also condemned laws restricting access to comprehensive education and information on sexual and reproductive health, arguing that criminal laws restricting abortions are an example of state interference with women’s right to health.59 Grover argued that decriminalization saves lives, and that access to voluntary family planning can reduce maternal deaths and unwanted pregnancies.60 In 2014, CESCR specifically denounced El Salvador’s criminalization of abortion as a violation of women’s rights, arguing that the ban has violated women’s rights to health and right to due process, and urged the country to review its legislation and to prioritize the provision of accessible medical care.61

Furthermore, the criminalization of services that only women require constitutes discrimination by sex, which is a violation of CEDAW’s Article 12(1). This article obliges states to adopt measures to eliminate discrimination against women in health care, including equal access to family planning services, to ensure the right to non-discrimination and equity. CEDAW’s General Recommendation 24 upholds that the state has an obligation to respect women’s access to reproductive health care, and that barriers preventing and punishing this access (such as abortion criminalization), are in violation of their right to health.62

Many States parties have defended their denial of abortion access by referencing a lack of available resources; as stated in Article (2) of the ICESCR, States are encouraged to undertake steps to the maximum of its available resources.63 However, many scholars argue that this is not a justifiable excuse, stating it is much more resource-intensive to treat complications from unsafe abortions than to provide safe abortions.64 In order to abide by the provisions set forward in international human rights treaties to fulfill the right to health, governments must ensure that women have access to safe and legal abortion services in order to freely exercise their reproductive and health rights.

Right to life

The right to life is recognized in customary international law (such as the Universal Declaration of Human Rights), but is also explicitly protected by ICCPR Article 6(1), which states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”65

Numerous international committees, including the UN Human Rights Committee (UNHRC), the CEDAW committee, and CESCR have publicly expressed concern about the relationship between abortion criminalization, unsafe abortions, and threats to women’s lives. Considering that 13% of maternal deaths are attributed to unsafe abortions, it is clear that restrictive laws enable the use of hazardous clandestine abortion methods, and violate the right to life.66

Furthermore, in some cases where a pregnancy endangers a mother’s life, an abortion may be the only way to guarantee her survival. UNHRC has interpreted barriers to women’s sexual and reproductive rights as issues that form the right to life of persons and considers punitive abortion legislation as a violation of women’s right to life under Article 6(1).67 CEDAW’s General Recommendation 24 also articulates the connection between the right to health during pregnancy and the right to life, stating that inaccessibility of reproductive care corresponds with high rates of unsafe abortions and subsequently mortality.68 Furthermore, in 2011, the Special Rapporteur on violence against women emphasized that El Salvador’s absolute ban puts women’s and girls’ lives at risk, constituting a violation of the right to life.69 These committees have emphasized that states have a duty to ensure the right to life of all persons, and should prevent situations where women’s lives are at risk. Moreover, they are obligated to adopt measures that guarantee women’s right to life by ensuring access to reproductive health care and emergency obstetric care.

Article 6(1) has been used by opponents of abortion, including El Salvador, to argue that the right to life is extended to the fetus, and therefore abortions actually violate this right by ending the life of a fetus.70 However, most international human rights treaties do not define a starting point for the right to life, but suggest that the right to life is not intended to apply before the birth of a human being, particularly when the right to life of a living person (the mother) is at risk.71 While the interpretation of this right is subject to moral, religious, and cultural beliefs, states should not favour the rights of a fetus over the rights of the mother. Furthermore, El Salvador’s Constitution states that international law trumps domestic law, meaning that the right to life does not extend to a fetus.72

Way forward

The role of El Salvador’s abortion ban in violating a number of human rights has not gone unnoticed in the international community. Many international bodies, such as UNHCR and CESCR, have condemned the ban and have called for the country to review its restrictive legislation and make amendments according to human rights law.73 Furthermore, international attention to the Zika outbreak has generated a discussion on women’s sexual and reproductive rights in El Salvador, indicating a ripe political environment for change.

The recent reinforcement of sexual and reproductive rights as a critical component of the right to health has spurred advocacy efforts in pressuring states to comply with their international human rights obligations and secure the positive realization of reproductive rights, and have reframed women’s rights as human rights. The combination of advocacy and litigation has been successful in liberalizing abortion restrictions in other countries that violated the same rights as in El Salvador.

In 2005, UNHRC held the Peruvian government in breach of its obligations to the ICCPR. In a landmark case, K.L. v. Peru, an individual complaint was lodged against the Peruvian government for denying access to a therapeutic abortion. The government was found to have been violating K.L’s right to life, among other rights (privacy, security, and non-discrimination), and was forced to provide adequate compensation to the complainant and prevent similar violations in the future.74

In 2006, Colombia’s Constitutional Court overturned its abortion ban after a petition to the court argued that the criminalization of abortion violated women’s fundamental rights to life, health, privacy, and dignity.75 The Court found that “constitutional rights and obligations must be interpreted in harmony with international human rights treaties,” further affirming that reproductive and sexual rights were strongly grounded in numerous human rights doctrines.76

The cases of Peru and Colombia set a precedent for El Salvador, and have laid a foundation grounding women’s reproductive and sexual rights as key human rights that are integral to the right to health. These cases also prove the potential of international human rights treaties in holding states accountable for their duties and obligations in ensuring human rights. According to Gloppen, successful human rights litigation has two things in common: ratification of those human rights instruments and inclusion of those rights in a state’s domestic constitution.77 El Salvador has not only ratified most international human rights, including the UNDHR, ICCPR, and ICESCR, but has provisions in its constitution to protect life, liberty, and health.

Conclusion

The case of El Salvador demonstrates how the criminalization of abortion breaches a state’s international obligations to protect human rights, violating women’s rights to life and health. The abortion ban merely increases the likelihood of unsafe abortions, which contribute to high rates of maternal mortality and morbidity. The punitive legislation further violates the right to health and autonomy by deterring women from seeking post-abortion medical attention, and by punishing women for making choices about their own bodies.

States parties have a duty to take all necessary steps to ensure women’s rights, particularly their sexual and reproductive health rights. States should respect these rights by removing legislation that penalizes women for having abortions. States should further protect and fulfill these rights by ensuring access to reproductive care that is accessible, available, acceptable, and of high quality.78 It is imperative for El Salvador to recognize and abide by the provisions in international human rights treaties in order to advance women’s equality, dignity, and justice.

Please address correspondence to the author c/o Alia Januwalla. Email: alia.januwalla@mail.utoronto.ca.

References

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  2. Ibid.
  3. Ibid.
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  11. Ibid.
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  28. Center for Reproductive Rights (2001, see note 5).
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  33. Ibid.
  34. Center for Reproductive Rights, Marginalized, persecuted and imprisoned: The effects of El Salvador’s total criminalization of abortion (New York: Center for Reproductive Rights, 2014). Available at http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/El-Salvador-CriminalizationOfAbortion-Report.pdf.
  35. Ibid.
  36. Ibid.
  37. Ibid.
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  39. World Health Organization (2011, see note 7).
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  44. Ibid.
  45. Krisch (see note 4).
  46. Human Rights Watch (see note 10).
  47. Center for Reproductive Rights (2001, see note 5).
  48. Ibid.
  49. Constitución Politica de la Republica de El Salvador (2003), art. 144. Available at http://pdba.georgetown.edu/Constitutions/ElSal/constitucion.pdf
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  1. Committee on Economic, Social and Cultural Rights, General Comment No. 22, The Right to Sexual and Reproductive Health, UN Doc. No. E/C. 3/2016/4 (2016).
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  3. Committee on Economic, Social and Cultural Rights (see note 56).
  4. Office of the United Nations High Commissioner for Human Rights, Joint Statement by UN human rights experts, the Rapporteur on the Rights of Women of the Inter-American Commission on Human Rights and the Special Rapporteurs on the Rights of Women and Human Rights Defenders of the African Commission on Human and Peoples’ Right (Geneva: United Nations, 2015). Available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16490&LangID=E
  5. Ibid
  6. Ibid.
  7. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 24, Women and health, UN Doc. No. CEDAW/C/1991/I/WG.II/WP.2/Rev.1 (1999).
  8. Center for Reproductive Rights, Whose right to life? Women’s rights and prenatal protections under human rights and comparative law (New York: Center for Reproductive Rights, 2014). Available at http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/RTL_3%2014%2012.pdf .
  9. Zampas and Gher (see note 8).
  10. International Covenant on Civil and Political Rights (ICCPR), G.A. Res 999, Art 6(1) (1966). Available at http://www.refworld.org/docid/3ae6b3aa0.html. 
  11. World Health Organization, Safe abortion: Technical and policy guidance for health systems (Geneva: WHO 2003). Available at http://whqlibdoc.who.int/publications/2003/9241590343.pdf.
  12. United Nations, Reproductive rights are human rights (Geneva: UNFPA, 2014). Available at http://www.ohchr.org/Documents/Publications/NHRIHandbook.pdf.
  13. Convention on the Elimination of Discrimination Against Women (see note 62).
  14. Center for Reproductive Rights (2014, see note 34).
  15. R. Copelon, C. Zampas, and E. Brusie, “Human rights begin at birth: international law and the claim of fetal rights,” Reproductive Health Matters 13/26 (2005), pp. 120-129.
  16. R.J. Cook, “International human rights and women’s reproductive health,” Studies in Family Planning (1993), pp. 73-86.
  17. Zampas and Gher (see note 8).
  18. Office of the United Nations High Commissioner for Human Rights (see note 59).
  19. L. Cabal and J. Todd-Gher, “Reframing the right to health: legal advocacy to advance women’s reproductive rights,” in A. Clapham and G. Kohler (eds), Realizing the right to health (Zurich: Ruffer & Rub, 2009), pp. 120-138.
  20. Ibid.
  21. Ibid.
  22. S. Gloppen, “Litigation as a strategy to hold governments accountable for implementing the right to health,” Health and Human Rights 10 / 2 (2008), pp. 21-36.
  23. Center for Reproductive Rights (2014, see note 34).