Image description: A march supporting decriminalisation of abortion. One of the participants is a woman wearing green (the symbol of sexual and reproductive rights in Latin America) and holding a poster calling for abortion to be made legal. 

In February 2008, a 32-year-old single mother of two Manuela experienced severe pelvic bleeding and lost consciousness. Taken to the local public hospital, she was reported to the prosecutor before receiving medical treatment because the staff suspected she had had an abortion. While she was handcuffed to her hospital bed and interrogated by police without a lawyer present, police officers also aggressively questioned her parents, forcing her illiterate father to sign a document they did not explain. This document, a formal accusation against Manuela, was later used as a key piece of evidence against her. Represented at trial by a poorly prepared lawyer, Manuela was sentenced to 30 years in prison for aggravated homicide. Manuela’s sentencing was on the basis of biased, unreliable evidence, and discriminatory attitudes towards poor, rural, single mothers. While imprisoned, she was diagnosed with Hodgkin’s lymphoma but not provided with consistent chemotherapy. She died in April 2010.

Manuela illustrates how pregnant people experiencing obstetric emergencies are treated in El Salvador. Pregnant people presenting for emergency care are often accused of the crime of abortion, a charge then increased to aggravated homicide, which requires automatic pretrial detention and can lead to a 40-year prison sentence. Approximately 200 women and girls have been prosecuted since the complete criminalisation of abortion in 1998.

The Inter-American Court’s judgment

In Manuela and Others v El Salvador, the Inter-American Court of Human Rights (IACtHR) found El Salvador responsible for violations of Manuela’s rights to personal liberty and presumption of innocence during pre-trial detention; her rights to judicial guarantees, personal integrity, and equality before the law at trial; and her rights to life, personal integrity, health, private life, and equality before the law while incarcerated. They also ruled that El Salvador had violated her family’s rights to personal integrity due to the profound suffering they experienced.

Missed opportunities for legislative critique

Although this is a welcome ruling, the Court’s reasoning is unsatisfactory for the advancement of sexual and reproductive health and rights (SRHRs) and gender justice. Rather than providing a detailed critique of El Salvador’s abortion legislation, it only ‘take[s] [it] into account.’ This is surprising because IACtHR regularly provides thorough critiques of specific legislative provisions which are central to the case. The Court fails to acknowledge that Manuela would never have been on trial but for the complete criminalisation of abortion, the active prosecution of those suspected of abortion, and the legislation’s disproportionate impact on poor rural women and girls.

Shortcomings in feminist legal reasoning and interpretation of of sexual and reproductive health and rights

The Court’s attempt at feminist legal reasoning is only partly successful. Although it draws attention to gender stereotyping during Manuela’s trial and incarceration, it does not undertake a feminist analysis of El Salvador’s abortion legislation.

The IACtHR also erroneously describes ‘the right to sexual and reproductive health’ as ‘part of the right to health’ (para 192), when SRHRs refer to a range of interrelated human rights. Rather than drawing on the extensive body of SRHRs standards elaborated by human rights systems since the 1990s to frame Manuela, the Court makes this one passing, inaccurate reference to them. The Court indicates some understanding of SRHSs and feminist legal reasoning when it asserts that ‘the liberty and autonomy of women in the area of sexual and reproductive health has historically been limited, restricted or denied due to negative, prejudicial gender stereotypes’ (para 252), but this approach is not reflected in the overall judgment.

A regressive turning point?

The IACtHR’s reasoning is disappointing because other actors within the Inter-American system have articulated support for decriminalising abortion. It marks a departure from the Court’s normally progressive approach to human rights adjudication, even though many OAS member states still have heavily restrictive abortion legislation or are introducing further restrictions.

The Court must come out strongly in favour of safe, straightforward, and legal abortion access. While justice has largely been served for Manuela and her family, justice for those living under El Salvador’s total abortion ban and gender justice in general still has to wait.