Beatriz et al. v El Salvador: The Inter-American failure to recognise a total abortion ban as torture
Cynthia Ledesma
Since the 1980s, the Inter-American Court of Human Rights has progressively developed jurisprudence concerning torture and other cruel, inhuman or degrading treatment (ill-treatment) in contexts of dictatorships, non-international conflicts, and democratic societies (see here). However, in its recent decision of Beatriz et al. v. El Salvador, the Court lost the opportunity to find that an abortion ban, even in cases of therapeutic abortion, leads to a violation of the prohibition of torture. Notably, the Court erred in finding no violation of Article 5(2) of the American Convention on Human Rights(ACHR) and of Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture (IACPPT), since the intent, suffering, and purpose – the three elements required for an act to constitute torture – were fulfilled.
Furthermore, this decision not only breaks with the torture’s jurisprudence of the Court, but also with its trajectory on women’s rights: In I.V. v Bolivia, the Court recognised that non-consensual sterilisation constitutes ill-treatment, and that gender stereotypes affect women’s access to sexual and reproductive rights (paras 270, 187). In Brítez Arce et al. v Argentina, obstetric violence was recognised as gender-based violence ‘that takes place during the pregnancy, childbirth or post-partum period, in private or public health facilities’ (para 75). Finally, in Manuela et al v El Salvador, in cases where women are tried for abortion or aggravated homicide, the Court acknowledged that intersectional factors – low-income, illiteracy, and coming from rural areas – aggravated disadvantages and created a particular form of discrimination (para 253). Hence, Beatriz’s case must be understood as a departure from the Court’s established standards.
General Context of the Case
Beatriz was a 22-year-old Salvadoran woman who lived in poverty, who was diagnosed with systemic lupus erythematosus, lupus nephritis, and rheumatoid arthritis (underlying condition), and who survived a severe preeclampsia during her first pregnancy. Her second pregnancy was considered high-risk, and she was informed that the fetus was anencephalic with no probability of extrauterine survival, for which she was recommended to terminate the pregnancy, since her life was in danger; however, due to a complete abortion ban in the country, the medical personnel refused to proceed. Hence, she filed an amparo – a procedural mechanism available when constitutional rights are violated – requesting authorization for having the abortion, but the Constitutional Chamber did not rule in her favor. Ultimately, during the twenty-sixth week of her pregnancy, polyhydramnios was found, and Beatriz had a cesarean section, from which a baby was born but died five hours later.
Among others, the Court found violations of the right of personal integrity, private life, and health, and violation of the prohibition of violence against women. Regarding the prohibition of torture, the Court only stated that there were insufficient elements to prove it (para 147), without providing any further legal analysis. This is the same case with Judge Sierra, who mentioned torture when citing laws in his reasoning that the Court should have also found violations of the right to life and reproductive autonomy, but he never addressed it. Following regional and international jurisprudence, this research explains why Beatriz’s case indeed constituted torture.
Constituent Elements of Torture
In a previous case, the Court determined that torture should be understood according to Article 2 of the IACPPT, but also considering other international and regional treaties’ definitions. Additionally, it stated that the elements of torture are an intentional act, severe mental or physical suffering, and a determined purpose (paras 78, 79). Regarding the difference between torture and ill-treatment, in Loayza-Tamayo v Peru, the Court manifested that it lies in the intensity of the physical and psychological suffering according to objective and subjective factors on a case-by-case basis (para 57). Thus, torture is found as the highest threshold of suffering that can be experienced, and by exclusion, other ill-treatments are those that do not meet the torture’s requirements (p. 32). Here, it is argued that Beatriz’s case did reach the required threshold to constitute torture.
Intent
To understand what intent implies, the UN Special Rapporteur on torture stated that the element is always met if the referred act is gender-specific or against someone for not complying with expected gendered social norms (para 8). He indicated that, since the difference between torture and ill-treatment is not always clear, a gender perspective must be employed, especially when violence against women is usually classified as ill-treatment, when it should be identified as torture.
As stated in Beatriz, the State's intent can be found in two moments. First, in 1998, the Penal Code eliminated the grounds for non-punishable abortion (para 79), creating a complete prohibition for the voluntary termination of pregnancy. From a gender perspective, this prohibition embodied and materialized the primary social expectation of women’s role as mothers, where they are not allowed to decide over their own bodies and to exercise the right to reproductive autonomy. Women who do not want to follow the social norm of being mothers are punished by not allowing them to abort. Beatriz’s case is even more serious since her life was in danger the longer the time passed, and a complete abortion ban is proof of the State’s intention to fully perpetuate those social norms that are gender specific.
Second, the State’s conduct was not accidental, since when Beatriz filed the amparo, it had the opportunity to protect her life. For this, the State argued that the Chamber balanced between the rights of the fetus and Beatriz’s rights, trying to guarantee both (para 162). However, the Chamber reaffirmed that the medical personnel did not incur any omission, and that Beatriz’s life and health were not under serious risk (para 68). Ultimately, the State knew about her personal situation and still decided to deny her access to a therapeutic abortion. Hence, its conduct was not accidental or merely negligent, since it actively decided not to prioritise Beatriz’s rights.
Severe Suffering
Concerning the second element, this section contends that Beatriz suffered from psychological torture. In a previous case, the Court established that the degree of suffering can be determined by objective factors such as the duration and method of ill-treatment, and subjective factors such as ‘age, gender, health condition, and any other personal circumstance’ (para 83). Hence, in terms of the objective factors, during week thirteen, Beatriz was informed about the anencephalic condition of the fetus, for which it was then necessary to have an abortion to preserve her life. Therefore, from week thirteen until week twenty-six, she was not allowed to interrupt her pregnancy, knowing she was in danger of dying and that the fetus had no chances of survival. Concerning the subjective factors, Beatriz was a 22-year-old woman who had a poor socioeconomic background; she had an underlying condition; she had severe preeclampsia during her first pregnancy; she was aware that her life was at risk during her second pregnancy; and she was dealing with the grief of knowing that the fetus would not survive.
Additionally, Beatriz had to go through a bureaucratic and judicial process to try to get permission for her abortion while being hospitalised multiple times during those thirteen weeks, demonstrating that she went through severe mental suffering. The view that not allowing a woman to have access to a therapeutic abortion leads to mental suffering and constitutes torture has been supported by the Human Rights Committee in Llantoy Huamán v. Peru. Proof of Beatriz’s suffering is that she expressed that her mental health was so affected that she even had suicidal thoughts, and that her psychologist determined that she was very anxious about her medical condition and the fetal anomaly (paras 111, 142). When considering all these factors, it is clear that Beatriz did reach the required threshold of suffering for an act to constitute torture.
Purpose
As with the intent element, the UN Special Rapporteur on torture determined that purpose is ‘always fulfilled if an act is gender-specific’ (para 8). Additionally, it has been established that this element is undoubtedly met ‘when it comes to gender-specific violence against women’ (para 68). The Court found in Beatriz a violation of Article 7(a) of the Convention of Belem do Para, and consequently, the Court has already found the purpose element to be fulfilled. As highlighted by Judge Sierra, complete abortion bans that lead medical personnel to deny women access to therapeutic abortion, especially when their lives are in danger, constitute obstetric violence (para 32). This violence is specifically discriminatory against women, since the real application of this norm will affect only those individuals who can get pregnant. Thus, the purpose element is proved from the obstetric violence against women that targets them in a discriminatory manner, which comes from the Criminal Code when prohibiting abortion. Purpose is highly intertwined with intent, where the ultimate goal is to remove the reproductive autonomy of women over their bodies, so they can fulfil their socially gendered roles as mothers without any active choice.
Conclusion
Even though the three required elements to constitute torture were fulfilled in Beatriz, the court did not find a violation of Article 5(2) of the ACHR – prohibition of torture and ill-treatment. Additionally, no violation of Articles 1 and 6 of the IACPPT was found – duty to prevent and punish torture and to take the effective measures to do so. The author contends that if the Judges considered that not all the elements were successfully met, they should have found ill-treatment at a minimum. It is deeply regrettable that the Court did not find that a complete abortion ban leads to torture. Now, this position has been crystallised in its jurisprudence, breaking the positive interpretation of the prohibition of torture and the progressive jurisprudence on women’s sexual and reproductive rights. This represents a disappointing moment for women’s rights in the Americas: If the Court had found torture, it would have sent a clear message to those countries in the region that still maintain a total abortion ban.
Author:
Cynthia Itzel Ledesma Gonzalez is an LLM Candidate from the Erasmus Mundus Joint Master Program of International Law of Global Security, Peace and Development. She is a certified lawyer in Mexico and holds a BA in Political Science from the US. She has work experience with female victims of sexual crimes, and is particularly interested in women's rights, gender perspectives and human rights
