The case Beatriz y otros vs El Salvador – pending judgment in the Inter-American Court of Human Rights (IACHR/OAS) – is about equality. Hence, it must be treated as such.
The case refers to the international responsibility of El Salvador for the violations of Beatriz’s rights, caused by the absolute prohibition on the voluntary interruption of pregnancy in the country. The restrictive normative framework prevented access to a legal, quick, and opportune interruption of a non-viable pregnancy. Furthermore, the pregnancy presented serious risk to life, health, and personal integrity to Beatriz, who carried an autoimmune disease. It is true, the IACHR/OAS has never ruled on abortion, even though in the case Artavia Murillo y otros vs Costa Rica the Court understood that the right to life is not absolute. But it has definitely ruled on gender equality and gender violence, expanding women’s rights. As such, to treat abortion differently would be inconsistent with its own case law.
Although abortion has historically been treated as a liberty matter, involving autonomy and privacy, if one looks at reproduction in context, equality emerges as central to both understanding and dealing with the issue. This, because gender inequality intersects with other systems of oppression such as racism and economic inequalities (the latter of special relevance to the case of Beatriz), permeates all steps of reproduction. The dimension of equality implied in reproductive rights is not exhausted by the statement that women get pregnant, and men do not. The reproductive process is determined by power asymmetries that pervade how unwanted pregnancies happen, the decision to keep or terminate it, and, in parallel, the unequal reproductive process perpetuates subordination.
In this context, the law continues to play a relevant role. Legal restrictions on abortion receive numerous justifications – the most common being the protection of the life of the fetus. But it is not unreasonable to think that roles socially assigned to women are part of the way the law deals with the issue. In this case, it is assumed that women’s lives (social and biological) must give way to the protection of the fetus, naturalizing the idea that motherhood is the ultimate purpose of women’s lives. This is wide open in the case of Beatriz; in which case the fetus was non-viable which only reinforces that it’s not just about the life of the fetus.
Bearing in mind the dimension of equality that pervades the issue of abortion, the Court’s understanding of equality should guide the resolution of this case. For instance, the case Veliz Franco y otros vs Guatemala defined gender violence as ‘violence directed against a woman because she is a woman or violence that affects a woman in a disproportionate way, is a form of discrimination against women’. Also, the Court has expressly repudiated violence carried out passively by civil servants and public authorities by omission or the negligent fulfillment of their duties in González y otros (“Campo Algodonero”) vs Mexico, where it found that violence against women is ‘influenced by a culture of discrimination against women’.
In these cases, the Court recognised gender inequality as a harm to be fought. Abortion restrictions are the same: they disproportionately affect women, constituting discrimination and are influenced by a culture of discrimination. As such, the situation must be treated similarly, for the court to maintain its protective and sensitive track record of protecting rights of women.
The Inter-American Commission on HR concluded that the State is responsible for violating the Human Rights set forth in pertinent international instruments. It also pointed out the need to repair the violations, adopt legislative measures to establish the possibility of terminating a pregnancy in situations of infeasibility of the fetus, as well in case of serious risks to life, health, and physical integrity of the woman.
The case will now be ruled by the Inter-American Court. As women legal scholars, we hope that not only El Salvador be responsibilised, but also that non-repetition measures are applied, so the issue can be treated structurally.