El Salvador / Inequality

“El Salvador should make reparations to women criminalized for abortion”

Carlos Lema

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María Luz Nóchez

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Catalina Martínez is the regional director of the Colombia-based Center for Reproductive Rights, a key piece of the alliance in El Salvador that has helped women sentenced to up to 50 years in prison for obstetric emergencies recover their liberty. The coalition has requested pardons, sentencing reviews, and commutations for 181 women who, from 2000 to 2019, were charged with aggravated homicide. Seventy of them, as of December, have been freed.

Martínez asserts that, while international pressure has not propelled large-scale changes for abortion laws in El Salvador, the release of these women indicates palpable, technical advances for sexual and reproductive rights. She thinks there’s room for optimism.

Twenty-four years have passed since El Salvador enacted an absolute abortion ban, followed by a constitutional codification of the right to life “from the moment of conception.” Given the state’s refusal to adapt to international standards, advocates sued before the Inter-American Court of Human Rights on behalf of Manuela, a woman sentenced to 30 years in 2008 for aggravated homicide. She died in prison from an undiagnosed illness that had also factored into her unborn baby’s death. In November 2021, the Court recognized her innocence and condemned El Salvador of torture.

This year, El Salvador will face a similar trial for Beatriz, who in 2013 was prevented from seeking an abortion despite the recommendations of her doctors and protective measures from the Inter-American Commission on Human Rights. Her case, filed at the Inter-American Court in January 2022, could be seismic, perhaps culminating in an order to change the laws in one of the countries with the most severe abortion bans in the world.

Every human rights organization to visit El Salvador has concluded that the jailing of women for obstetric emergencies is torture. But why urge the country to ease its abortion ban if it appears to have no effect?

There have been changes, albeit small ones. El Salvador’s grave problem of its absolute prohibition of abortion, in addition to creating external pressure on the country, has caused civil society and feminists to organize themselves and position the topic in the public debate. The conversations [about abortion] in 2000 are not the same as those taking place now. Today there is much more openness and awareness.

What evidence is there of those changes?

In the wake of the [Inter-American] Court’s decision, there has been a systematic release of similarly imprisoned women, affecting the lives of women who were unjustly criminalized.

But while they did recover their liberty, most of these women were not declared innocent.

We needed to secure the women’s liberty, because we didn’t know how much longer they would have been held. Many have been there for over ten years, and that’s why we began seeking commutations, knowing that it’s not the ideal. They’re being told, “You’ve served enough time,” but it was the only effective way to get them out of prison. That’s also why we filed cases in international court. One of them, on behalf of eight women, is under review by the Inter-American Commission and will soon pass to the Court. We want the Court to acknowledge that these and many women were structurally and systematically persecuted and recommend that El Salvador offer collective reparations to those who suffered these same circumstances.

Given the state’s inaction, it appears that the rulings of the Inter-American Court are what will change things in El Salvador.

International pressure has contributed to changes for women in El Salvador, as best exemplified by the Inter-American Court’s Manuela ruling. Afterward, the state committed to creating protocols to tend to obstetric emergencies and regulate doctor-patient privilege. They are evidently not perfect, but they show how we’re advancing little by little.

The Court ordered the state to acknowledge its responsibility in Manuela’s death as well as her innocence. Six months were allotted to do so, but that was over a year ago, and it has yet to happen.

Yes, things have been slow, but there have been other important advances. First is that the Manuela ruling has permitted government offices to remind the courts that the cases of women criminalized for obstetric emergencies are framed by systematic violence. And that has factored into the release of some eight women following the ruling. Now, El Salvador’s grave debt to the Manuela case is to make individual reparations to the family and, of course, acknowledge the state’s responsibility. It would be a political message to the state and to society that this was wrong, and that we are going to improve.

The protocols are an important step, but 24 years have passed without legal reforms.

There are things that we want to improve and that we are working on with the Feminist Collective, but the protocols show a will to move forward.

Why do you think it has taken so long?

El Salvador has its peculiarities, but it’s not that other states have moved quickly or by government initiative. In Argentina, it was an Inter-American Court ruling and, later, the feminist movement’s victory in Congress. In Colombia, we can’t even try to go to Congress because we know that we would have no chance there, so we explored the option of the Court. We’re in a very restrictive context throughout the region where advances are owed to feminists’ framing of abortion as a human rights issue. That said, in El Salvador, and particularly in Central America, the church has propelled a particularly denialist discourse surrounding reproductive rights, and we can’t deny that it has influenced the social imaginary that abortion is “bad.”

Precisely because of that context, it’s striking that you say that there are institutions applying the Inter-American Court’s orders.

We have allies within the government and at the U.N. High Commission for Human Rights who are closely accompanying these cases.

How do you build those relationships with a government that has made clear that abortion is, at the most, the last on its list of priorities?

Whether they like it or not, the Manuela ruling orders them to open a line of communication. The state has done so, and while it’s not the best nor the most fluid, it exists.

Through which institutions has that channel been opened?

The Ministry of Security and Justice, Ministry of Foreign Relations, and mission of El Salvador to the OAS; all of these organizations who work in the realm of international justice. But on the other hand, in every government, be it right-wing, left-wing, or whatever the case, there are always technicians who want things to move forward. While they don’t have political power, they are pushing for change from the inside. People are always hoping for grand commitments from public figures, but when you work on the implementation of international sentences or on the creation of new public policy, those technical allies help make many things happen.

2023 is the year before national elections in El Salvador, where it’s more popular to oppose the broad concept of abortion than an absolute ban. How convinced are you that the gains made thus far won’t become bogged down? 

We’re in a pre-election context, but abortion will find its way onto the agenda. The Beatriz case will go before the Inter-American Court. The country will be under review by the Court and will have a second ruling, possibly a condemnation, next year. The ruling will be decisive because, as opposed to that of Manuela, the Beatriz case is about the lack of access to abortion. It will require the court to take a stance on abortion. Second, the Court will have to recommend that El Salvador liberalize its abortion law. That did not happen in the Manuela case.

But just as the state has not acknowledged its responsibility in the Manuela case, a ruling in favor of Beatriz does not automatically reform the Penal Code. If nobody compels them, why would they do it?

Yes, they are required to do so. It’s just that the practical effects of that obligation are hard to see, because if they don’t do it there will be no economic or other punishment to pressure the state to quickly comply. But that doesn’t eliminate the obligation. It will remain for years until the state does so, and the Court will issue follow-up resolutions or for non-compliance.

The Salvadoran government’s most popular measure —the state of exception now reaching its tenth month— is tied to systematic human rights abuses. Is it realistic to think that this same government will reaffirm rights that were curbed more than 20 years ago? 

Without a doubt, this is a government that restricts individual liberties, including sexual and reproductive rights. But there are so many advances in the acknowledgement of rights around the world that El Salvador will be left completely in the past. A time will come when we will achieve the changes we have long been fighting for. I remain optimistic.

Is it hard to be optimistic when El Salvador is the fantasy of conservative groups and the horror story of progressive countries on these issues?

We can’t lose our optimism. As we continue building the public debate, teaching, and bringing more people into the struggle, we will contribute more to the social decriminalization of abortion. More and more people are talking about this and realizing the injustice of it, and I think that it’s very important that El Salvador end its horror story.

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