Tuesday, April 6, 2021
Manuela v. El Salvador Could Affect Abortion Law Across the Americas
By Shelby Logan (April 6, 2021)
In 2008, Manuela, a 33-year-old Salvadoran, had a miscarriage at home. When she lost consciousness, concerned family and friends took her to a hospital in San Francisco Gotera, a small town in eastern El Salvador. When Manuela was discharged some days later, instead of returning home, she was taken to jail.
Manuela (the pseudonym used to protect her family’s identity) was accused of having an abortion and charged with aggravated homicide.
She had been reported to the police by hospital staff. Because her pregnancy occurred outside of marriage, they believed Manuela, a mother of two young children, must have tried to abort. Manuela, who could neither read nor write, was not provided legal counsel while being questioned. After a process in which she was represented by three different public defenders, Manuela was sentenced to 30 years in prison. While the doctors focused on criminalizing her obstetric emergency, they missed a large mass in Manuela’s neck and, while in prison, she was diagnosed with cancer. She died behind bars two years later.
On March 10, 2021, the Inter-American Court of Human Rights heard the first arguments in Manuela y Otros v. El Salvador, marking the first time a Latin American country's anti-abortion law and its effect on women's health and human rights, have been challenged in an international court.
Manuela’s story had motivated an international slate of activists who brought her case to the Inter-American Commission on Human Rights in 2012. Finding that Manuela’s fair-trial rights had been violated, the Commission referred the petition to its judicial affiliate, the Inter-American Court of Human Rights. Almost nine years to the day after they brought Manuela’s case to the Commission, last month, an international coalition of groups argued before the Court for reparations for Manuela’s family and asked that the Court compel the Salvadoran state to take public responsibility for not guaranteeing the human right of Manuela and others like her to life and health.
El Salvador has among the world’s most strict abortion law, outlawing the procedure entirely. This includes special instances where a child was conceived by rape or incest or where the health of mother or child is at risk. In the last 20 years, at least 181 women who experienced obstetric emergencies were prosecuted for abortion or aggravated homicide just like Manuela.
Activists continue to express that a total ban on abortion further develops a culture of systemic discrimination and gender-based violence, one that disproportionately affects women in vulnerable situations. They are arguing that El Salvador’s mandatory reporting of obstetric emergencies to the police is a violation of women’s right to privacy and health, a human rights violation.
The plaintiffs have asked the Court to hold El Salvador accountable for laws that deny and criminalize reproductive health, and cause violence against women who suffer obstetric emergencies.
The Court’s decision, due to be released this year, is expected to create jurisprudence within the Inter-American Human Rights system. Including El Salvador, 20 states in Latin America and the Caribbean have recognized the Court’s jurisdiction. The Court can require the payment of reparations to victims but, more significantly, it can order structural and normative changes to State practice.
It is activists’ hope that the Inter-American Court of Human Rights' decision becomes a path for justice and hope for all women in Latin America and the Caribbean who are criminalized for their obstetric and reproductive processes and needs.