A year and a half has passed since the Inter-American Court of Human Rights heard arguments in Beatriz v. El Salvador. This landmark abortion-access case concerns not only the small Central American country but the region; it is the first in the Inter-American System of Human Rights (IASHR) in which the implications of a country’s absolute abortion ban are under the judicial microscope in the Americas, home to three of the five countries with the most restrictive abortion bans in the world.
The Salvadoran state has been accused of incurring in torture for violating, among others, the rights to life, judicial guarantees, equality before the law, and the right to health of Beatriz, a woman who was found in 2013 to have a high-risk pregnancy and to be carrying a fetus that lacked a brain but was denied a therapeutic abortion despite her doctors’ medical opinion that she needed one. In 2022, the Inter-American Commission, the lower forum that rules on contentious cases that can then be raised to the Court, found that the treatment of Beatriz was “cruel, inhumane, and degrading.”
The state was already declared guilty of torture in 2021 in the preceding case Manuela v. El Salvador, pertaining to 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. The Court's ruling enabled actions to release the last seven women from The Seventeen — a group who had been convicted for over 30 years, falsely accused of first-degree murder.
Beatriz has gained such international attention that a total of 119 amicus curiae were sent to the Inter-American Court from legal and medical professionals and academics from around the world. Ipas LAC, one of the organizations representing Beatriz's family in its case against the state, told El Faro English that 89 of those briefs were arguments in favor of their cause. The totality of the documents is not public until the Court dictates its resolution, and only the interested parties can have access to them, though several of them have been published online anyway.
The sides and their respective allies have taken drastically different public approaches as they await the ruling. While the organizations representing Beatriz’s mother ask for justice, legalization of abortion access, and the recognition of the state crime of torture, on the other hand, organizations, academics, and spokespeople who have sided with the Salvadoran state’s representatives are attacking the Court and the magistrates’ independence and credibility.
Heavy anticipation
Both sides expect the resolution to come soon, considering it only took nine months for the Court in 2021 to give its Manuela resolution, whereas a year and a half have passed since the sole hearing in Beatriz was held in March 2023. But as the Inter-American System faces increasing political pressure around the hemisphere, Morena Herrera, President of the Citizens’ Gathering for the Decriminalization of Abortion, and Fernanda Díaz de León, Deputy Director of Advocacy at Ipas Latin America and the Caribbean —both of whom represent Beatriz’s family— try to provide more political margin for the Court to take its time in coming to a decision. Rather than speaking of a delayed ruling, they underscore that the Court has no set timetable to issue decisions.
“Considering the time that the Manuela case took, we expected that by the end of last year, 2023, we would have the ruling in Beatriz’s case. This has not happened; we know that Beatriz has generated intense discussions, not negotiation, but in general the Court is delayed,” explains Díaz de León.
The configuration of the Court is set to change in January 2025, but even if by the end of the year there is no decision, she says that is not an issue, as it is stipulated that the same six judges who were present in the hearings in March 2023 will be the ones to issue the verdict.
In the meantime, the organizations representing Beatriz's family have set the possible scenarios or results that could occur once the ruling is issued, which they recognize as only the first step. “Undoubtedly it will depend on the content of the verdict as well on how the State of El Salvador takes it and how compliance progresses,” Díaz de León adds.
Considering the slow progress of the Salvadoran government’s compliance with the Manuela verdict, Herrera emphasizes that even if this government does not fully comply with the Court's resolution, the conviction is irreversible.
Allies of the Salvadoran state's representation have taken a different approach.
On Aug. 9, 2024, a video was posted to the YouTube channel of Ciudadanos Argentina, a political group under the umbrella of Liberty Advances, the far-right coalition led by Argentine President Javier Milei. Milei has openly said that he is against any right to abortion, and threatened to repeal the December 2020 law that made the termination of pregnancies free and legal up to 14 weeks in Argentina, where before abortions were only permitted in cases of rape or when the mother's health was at risk. In the video, the organization claims in a flustered voice-over that “abortion is about to be legalized across all of the American continent if we don’t act urgently.”
The narrator proceeds to list various human rights organizations and philanthropic foundations as donors of the Court, ranging from Amnesty International to Open Society Foundation to countries of the European Union. The court, they say, must “observe and defend the human rights of the Americas.” To support their concerns they quote statements from Milei, Bukele and Santiago Santurio –a congressman from Liberty Advances– to whom they refer as “grand political figures of the Americas.”
In the video, Milei is seen accusing the listed organizations of co-opting the media landscape, universities, and multilateral bodies. He does not mention by name either the Court or the Inter-American Commission of Human Rights, but claims that these organizations wield significant influence on the political and economic decisions taken in the affiliated countries. Bukele follows, saying that he made the mistake of trusting the OAS before ascending to the presidency, but that once he took office he realized that the “international community is hypocritical and cynical.”
Bukele made these remarks in 2021, when the Salvadoran government broke off its cooperation agreement with the OAS that had created the International Commission against Impunity in El Salvador (CICIES), after this commission had assisted in compiling a dozen major cases of corruption in his government. Bukele's criticism of the Inter-American System —he once went further, branding the OAS the U.S. “ministry of colonies” on his Twitter account— has grown as his administration continues to be singled out in international forums for the systematic human rights violations perpetrated under the state of exception.
Milei and Bukele are not the only heads of state to take a rebellious tone toward the Court. In December 2023, regarding the Beatriz case, Costa Rican President Rodrigo Chaves threatened to denounce the American Convention of Human Rights, which gives the Inter-American Court its jurisdiction, if the ruling proposes legislative changes to legalize abortion. “If the Court orders something, Costa Rica has no choice but to withdraw from the treaty,” said Chaves, referring to the American Convention of Human Rights in an interview with Impact Channel, a Costa Rican network with a Christian editorial line. As for the rationale behind that decision, he dodged the matter, saying only: “This is major-league chess.”
Such a withdrawal —preceded only by Trinidad and Tobago in 1998 and Venezuela in 2013— would not be so easy in domestic political or legal terms; it would require the signing-off of Congress and the Constitutional Chamber. But withdrawing from the American Convention after the ruling is made public would have a limited effect in practice, applying only to future decisions of the Court.
Funding to the Inter-American System
The video’s voice-over next returns to Beatriz v. El Salvador, predicting a “tragic precedent under the pretext of defending human rights.” The source of the video is a report published by the Global Center for Human Rights, a conservative advocacy group, that points to the budget of the Commission and the Court as well as the financial contributions they receive from donors and international cooperation agencies, such as the Arcus Foundation and the Trust for the Americas. The Global Center for Human Rights, co-producer of the video, was one of the advisors of the Bukele administration during the hearings held in San José, Costa Rica, in March 2023.
The report claims that the Court is bound to a progressive agenda led by European countries and NGOs that work for access to sexual and reproductive rights, as well as for the defense of rights and promotion of identity-related laws for the LGBTQ+ community. The main issue, Sebastian Schuff and Maria Anne Quiroga, authors of the report, claim, is that the allocation of these funds can influence the content of Inter-American System decisions.
“In this way, the IASHR is not free to allocate the funds to the activity that most requires them according to its own criteria, but must direct them to the projects or activities indicated by the corresponding contributor. Devoting funds to the promotion of specific projects means, in practice, strongly influencing the IAHRS agenda and the impact it has on the Member States,” they suggest in the report.
One of the examples they cite is the allocation of $4.737 million U.S. dollars in 12 years (2009-2021) by the Spanish Agency for International Development Cooperation (AECID), funding which they claim has been tied to promoting a political agenda “for the production of rulings against member countries of the IAHRS.” They focus on two cases that took place in 2016: The first was Duque v. Colombia, which sought pension recognition for same-sex couples; and the second was Flor Freire v. Ecuador, which ruled against discrimination based on sexual orientation.
The authors are also suspicious of three advisory opinions published as a result of an agreement between the Court and AECID, which included standards on the environment, Indigenous peoples’ rights, the special obligations of protection for children, asylum, sexual violence, and non-discrimination based on sexual orientation and gender identity.
They find it dangerous that these are identified as human rights standards. “They are not human rights standards. [...] The intended binding nature of these standards is a clear demonstration of the abuses and overreach of the bodies of the system and their desire to achieve their objectives by using counter-majoritarian means, with minimal democratic legitimacy.”
The allegations that the court lacks independence are not new. The new president of the Court, Nancy Hernández, sought to head off the renewed criticism in a statement in January 2024: “Many times I have heard, with great concern, voices pointing out that the Court receives funding with interests imposed by the donor, or that the donor is the one who manages the Court’s agenda. This is absolutely false,” reads a transcription of her comments on the Court’s website.
Hernández explained that donations are complementary funding that the Court has been forced to seek, given that the OAS only covers 71.27 percent of all of the Court’s expenses. The rest, she claimed, is not allotted to handling casework, but rather to in-country visits, training in off-site hearings, psychological support during hearings, and other activities aimed at protecting the rights of persons participating in proceedings before the Inter-American Court. She closed by announcing that, from that day on, the information related to the distribution of the budget will be posted on a special tab on the Court’s website.
An examination of the financial information of the last five years (2018-2022) posted on the website shows that the money allocated by the AECID, for example, only represents 2.63 percent of the Court's non-litigation budget during those years, and 2.11 percent of the 2023 purse.
El Faro English sent Schuff and Quiroga multiple emails to request an interview about the report but received no response.
Beyond abortion
Schuff and Quiroga are the President and Director of Research, respectively, of the Global Center for Human Rights, an organization that describes its work in three steps: mobilizing key actors to influence decisions; training decision-makers and other stakeholders on “the proper use of international law and the functioning of international organizations”; and advocacy to ensure that decisions taken within the international organizations “respect national law and democracy, and litigating before the Inter-American Court when this is not the case.”
They were both present in the courtroom in March 2023 as part of the legal team advising El Salvador. They posed after the second day of the hearing with Conan Castro, who was then the legal secretary of the Salvadoran Presidency.
In December 2022, three months before the hearing took place in San José, the organization launched a campaign titled “No Next Roe,” aiming to prevent the impact of the ruling in the neighboring countries. The website is no longer available. The second webpage they created was casobeatriz.org, a site with videos and resources that spread misinformation on Beatriz and cast doubt on the ISHR and the Court's funding. “A multimillion-dollar industry wants to impose abortion on the whole continent, using a vulnerable woman and her disabled daughter,” reads the homepage. The advocacy groups’ main platform to spread these messages is the Instagram profile of the Global Center for Human Rights, where most posts are devoted to the anti-abortion cause.
One Instagram post on the account, from July 2023, highlights a reception co-hosted with The Heritage Foundation, a conservative U.S. think tank, to condemn the alleged use of U.S. taxpayer funds “to finance the undermining of fundamental freedoms in Latin America and the Caribbean through the Organization of American States (OAS).” The Heritage Foundation is the creator of Project 2025, an initiative that proposes expansions of presidential power and enforcement of an ultraconservative social vision, should U.S. Republicans retake the White House this year. Bukele's decision in San Salvador to strike everything related to sexual education from the national public-school curriculum was taken from Project 2025’s so-called Mandate for Leadership, right after he was a speaker at the Conservative Political Action Conference (CPAC) in February 2024.
The Heritage Foundation has long been publicly friendly with Bukele; the Salvadoran president gave a speech there in March 2019, before being sworn in as president, in a trip to seek a close relationship with the Trump administration.
The Global Center for Human Rights also sponsored the physical publication of a book titled, “Abortion before the I.A Court H.R: About the ‘Beatriz v. El Salvador’ case,” which includes articles by three of the Salvadoran State's expert witnesses before the Court: Paolo Carozza, María Carmelina Londoño, and Ligia de Jesús Castaldi. The book also includes some of the amicus curiae presented on behalf of El Salvador that focus mainly on the defense of birth of people with disabilities and arguments against abortion as eugenics. A copy of the book was submitted to the Court's library. Between 2019 and 2020, Carozza was a member of the Trump administration’s Commission on Inalienable Rights.
El Faro English talked with Debora Ranieri, co-director of the book and professor at the Pontifical Catholic University of Argentina. She described the book as the joint effort of legal scholars interested in providing compelling arguments so the Court has all of the necessary information before they come to a decision. The case, she claims, is not about abortion, as Beatriz was able to give birth to her baby. Instead, she says, “This is a case of a baby born with anencephaly, whose mother gave her a name, and five years later the mother died — not because she had the baby, that is, the pregnancy had no consequences. So it is a case built on strategic litigation by [pro-abortion access] associations that have led Beatriz’s mother to generate this case.”
Ranieri claims that Beatriz’s life was never in danger, and that doctors took good care of her and the baby. In the book’s introduction she, alongside fellow co-director Sofia Calderone, claims that Beatriz made a successful recovery, citing an interview published by El Faro in 2014, in which Beatriz says that she visited her daughter’s grave. What they overlooked from that interview is that Beatriz acknowledges the struggle with her physical and mental health after she was forced to give birth to her baby, who died shortly after exiting the womb, and contrary to her request to have an abortion.
Definition of disability
For Ranieri, the fact that Beatriz said she would not have thought of asking to interrupt her pregnancy if the baby had the prospect of surviving outside the womb is evidence that the case must be studied under the lens of eugenics. “We are very concerned about the possibility of [opening the door to] eugenic abortion, which is to say the consideration that there are people who do not deserve to be born because of certain conditions,” she says, and then compares the access to an abortion when the life of the baby is incompatible with crimes committed by Nazi Germany: “We have suffered in the world the eugenic mentality of Nazism, which decided that certain people didn't deserve to live because of certain racial conditions.”
From the medical point of view, anencephaly is a lethal malformation, an irreversible damage incompatible with life. Guillermo Ortiz, the doctor who treated Beatriz, told El Faro English that to diagnose a disability, in medical terms, the fetus “must have a prognosis of long-term survival outside the uterus.” He added, “Anencephaly does not [meet those criteria]. They die inside the uterus, at birth, or in the first hours, without it being possible, even with the most advanced technology, to procure survival.”
This contrasts starkly with Ranieri’s legal argument that “disability is understood when a human being has a diminished capacity. In this case [of anencephaly], the brain has a diminished capacity, and its survival is limited by a brain malformation. So it is a disability.”
When asked about the assertion in the book that the Inter-American Court's rulings are bound to the donations they receive, Ranieri only said: “I could say there were other cases where the court was not neutral.” She is referring to Artavia Murillo v. Costa Rica, a case regarding in vitro fertilization, in which the Court established that the right of life —protected by article four of the American Convention “from conception”— is recognized from the moment of implantation, not fertilization.
“In that case [Artavia Murillo], the Court was not neutral about respecting the reality of what the treaty [American Convention on Human Rights] says in article four,” asserted Ranieri. But she declined to articulate how exactly the court’s lesser funding had allegedly conditioned this ruling: “Now, the reasons why it was not neutral, well, I don't dare say what conditioned them.”
As much as the law professor praises the work of Quiroga and the Global Center for Human Rights, she draws distance between them, alleging that their involvement was limited to the sponsorship of the printed copies. She told El Faro English, “If power is put above the law, and pretends that the law says what it does not, the rule of law is broken, entering a lane of arbitrariness.”
