HR Court Prohibits Reporting Women for Abortions in L.A.

Jesus, Manuela’s eldest son, holds in his hands the 121-page judgment of the Inter-American Court that finally imparts justice for his mother, during the press conference in San Salvador that announced the historic ruling for women in El Salvador and the rest of the Latin American region. Photo: Courtesy of Colectiva Feminista 

By Edgardo Ayala (IPS) 

HAVANA TIMES – In a landmark decision due to its regional impact, the Inter-American Court of Human Rights ruled that to prevent women from being criminalized, health personnel in Latin America and the Caribbean should not report women who arrive at hospitals with obstetric complications or seek medical help for abortions.

That was one of the main points of the ruling of the Inter-American Court recognized on November 30, in which it condemned the Salvadoran State for the death of a woman known only as Manuela, who died in 2010 after being arrested in 2008 and sent to prison for allegedly having an abortion.

Justice for Manuela

“We believe that justice has been served for Manuela, for her family, and for Salvadoran women. Additionally, the ruling has important significance for Latin American women,” lawyer and activist Morena Herrera, president of the Citizen Group for the Decriminalization of Abortion in El Salvador, told IPS.

In the Case of Manuela and Others vs. El Salvador, the Inter-American Human Rights Tribunal, based in San Jose, Costa Rica, held the Salvadoran State responsible for violations of the rights these women suffered, including personal freedom, judicial guarantees, equality before the law, the right to life and health.

In a press release on November 30, the Inter-American Court noted: “Since the absolute criminalization of abortion came into force in El Salvador women who have suffered spontaneous abortions and other obstetric emergencies have been criminalized.”

It continued: “In many cases these women are prosecuted and convicted of aggravated homicide, so the sentence is between 30 and 50 years in prison.”

In El Salvador, a small Central American country of 6.7 million people, one of the most draconian laws on reproductive health has been in force since 1998, criminalizing abortion in all its forms, even in cases of rape or when the life of the mother is in danger. [Nicaragua has a similar law since 2006.]

“The Court is categorical in recognizing that Manuela suffered an obstetric emergency, and that both the health system and the judicial system treated her as if she had committed a crime,” Herrera said.

Manuela, a poor and uneducated woman, lived in a rural area of the country with her family. She was pregnant and in February 2008 she suffered an obstetric emergency and was treated at the hospital of San Francisco Gotera, in the eastern department of Morazán.

That emergency was due to an undiagnosed lymphatic cancer and a fall she had in the river while going to get water, which caused the spontaneous loss of her pregnancy.

The doctor who treated her reported her, since her medical evaluation showed the occurrence of a birth, however, “she had no product,” the press release detailed.

Manuela left orphaned two children ages 7 and 9. They are now teenagers. One of them, Jesus, the eldest, was at the conference held in San Salvador on December 1, reporting on the historic sentence that imparts justice for his mother.

The ruling held that cases like Manuela’s transpire in a context of criminal prosecution, where what rules is not the presumption of innocence, as it should be, but on the contrary, a context of guilt.

At the foundation of this are the gender prejudices prevailing in societies such as Salvadoran, tremendously religious and machista.

“This Court emphasizes that the use of gender stereotypes to substantiate a judicial decision can demonstrate that the decision was based on preconceived beliefs rather than facts,” reads the 121-page Inter-American ruling.

“One of the main advances of this ruling on the rights of women at the inter-American level, is precisely about their rights to their reproductive health and the standards that have been developed regarding professional privacy, and the confidentiality of medical records”: Carmen Cecilia Martínez.

The opinion was signed by Elizabeth Odio Benito of Costa Rica; Patricio Pazmiño Freire from Ecuador; Eduardo Vio Grossi, Chile; Humberto Antonio Sierra Porto, Colombia; Eduardo Ferrer Mac-Gregor Poisot of Mexico; Eugenio Raúl Zaffaroni, from Argentina and Ricardo Pérez Manrique from Uruguay.

“The ruling is also an instrument of social justice, because those who are criminalized are usually young women who live in poverty,” Herrera said.

Morena Herrera and Carmen Martínez, during the meeting with journalists on December 1 in San Salvador, in which they announced the ruling of the Inter-American Court of Human Rights, which provided justice for Manuela, who died in a prison in El Salvador in 2010, where she was imprisoned for a spontaneous abortion that the court ruled as induced. Photo: Courtesy of Colectiva Feminista

The sacredness of professional privacy

The ruling on Manuela has an enormous impact for women in the Latin American and Caribbean region, as it establishes international jurisprudence in all its aspects.

Above all, in one of the key points: women cannot be reported by health personnel when they arrive at hospitals or clinics seeking medical assistance for pregnancy complications or even abortions.

These reports are often the starting point for the criminalization of women in El Salvador when they arrive at public hospitals seeking medical assistance for spontaneous abortions or other obstetric complications.

Doctors and nurses are pressured to report a woman who comes seeking help in such cases, fearing that the authorities will also incriminate them as accomplices in abortion cases.

To date, the Salvadoran judicial system has sentenced 14 women to 30 years in prison for cases like Manuela’s. Six others are on trial, imprisoned, awaiting trial.

During the COVID-19 pandemic some 15 women were freed by the efforts of lawyers from human rights organizations, Herrera said.

“The Court is very clear: women who are seeking medical attention in reproductive health should never be reported, and that includes abortion,” Carmen Cecilia Martínez, regional program manager for the Americas and the Caribbean at the Center for Reproductive Rights, whose office is located in Bogotá, told IPS.

This organization and the Salvadoran Feminist Collective for Local Development and the Citizen Group for the Decriminalization of Abortion were the ones that promoted Manuela’s case in the Inter-American Court since 2012 and have now achieved the resolution that condemns El Salvador.

The ruling also sets an important precedent in favor of a woman’s right to choose in this region that has the most restrictive rules in the world regarding this issue.

“One of the main advances of the ruling on women’s rights at the Inter-American level is precisely about their rights to reproductive health and the standards that have been developed regarding professional privacy and the confidentiality of medical records,” said Martinez, who traveled to San Salvador, the Salvadoran capital, within the framework of the ruling. which she called “historic.”

That means that everything a woman says to a doctor or nurse about any aspect of her reproductive health is strictly kept under the principle of professional privacy and confidentiality, as is anyone who seeks a medical service.

As of the decision, the 32 member states subject to the jurisdiction of the Inter-American Court as signatories of the American Declaration of Human Rights must establish protocols and regulations to fully comply with the provisions of the ruling.

El Salvador signed that Declaration in 1978

Specifically, the Court established that States guarantee professional privacy and ensure that gender stereotypes are not used in the judicial field, including those that pretend that a woman should act in accordance with a reproductive role and, therefore, a maternal instinct.

Also, it guarantees adequate protocols to attend obstetric emergencies with accessible and quality health services.

While countries generate such legislation or regulations, which can take time, the Court said it is immediately prohibited to report women when they arrive at hospitals.

Martinez added that the ruling has a strong impact in countries such as El Salvador, Honduras and Nicaragua, where draconian abortion laws prevail. But also, in nations whose legislation on this issue is more advanced. However, even there, there are cases of women who are living in circumstances like Manuela’s, in Colombia, Argentina, Ecuador and Peru, she said.

“In all these countries, cases have been identified where, as happened to Manuela or so many Salvadoran women, they are criminally persecuted for having an obstetric emergency or a complication in pregnancy,” Martinez said.

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