50.50: Investigation

European and US Right groups backed El Salvador criminalising abortion – and lost

In a case at the Inter-American Court of Human Rights, European groups supported criminalising women who had obstetric emergencies

Diana Cariboni Tatev Hovhannisyan
3 December 2021, 5.58pm
Salvadoran women on the Global Day of Action for Abortion, 28 September. Photo: Camilo Freedman/Zuma Press Inc/Alamy Stock Photo. All rights reserved
Photo: Camilo Freedman/Zuma Press Inc/Alamy Stock Photo. All rights reserved

European right-wing groups backed the El Salvador government over the imprisonment and death of a woman for having a miscarriage. But they lost.

One of the groups was the European Centre for Law and Justice (ECLJ), a branch of the ultra-conservative American Center for Law and Justice (ACLJ), led by Donald Trump’s former personal lawyer, Jay Sekulow.

The case at the Inter-American Court of Human Rights was brought on behalf of a woman who was imprisoned for “aggravated homicide” after experiencing a miscarriage.

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The government of El Salvador, where abortion is illegal in all circumstances, violated several rights of this woman, who died of cancer while serving a 30-year sentence, the Inter-American Court said in a ruling published this week.

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The ECLJ presented legal arguments supporting El Salvador as a ‘friend of the court’ (also called an amicus brief), arguing that the case was about “abortion and infanticide”.

Alejandra Cárdenas from the Center for Reproductive Rights (CRR), which took the woman’s case almost a decade ago, told openDemocracy that “never before [had] this group filed amicus” to the Inter-American Court.

Another set of amicus briefs backing El Salvador was filed by three dozen conservative groups from three continents, including the Ordo Iuris Institute for Legal Culture (Poland), the Fondation Jérôme Lejeune and Juristes pour l'Enfance (both France), the Federation of Catholic Family Associations in Europe (based in Belgium) and Nigeria’s Project for Human Development.

El Salvador is the ‘golden model’ for reproductive bullies

For Irene Donadio, from the reproductive rights organisation International Planned Parenthood Federation, the involvement of European conservative groups didn’t come as a surprise.

“El Salvador is the ‘golden model’ for reproductive bullies. It’s something they hope to mimic in the US and in Europe. This is why they are defending it with all their well-funded arsenal of lawyers and lobbyists,” she said.

Donadio cited a draft bill discussed this week by Poland’s parliament that sought to impose long prison terms for women who have had abortions. It was rejected by an overwhelming majority.

“This law is copy-pasted from El Salvador, which has one of the cruellest laws on the books against women,” she said.

Neil Datta, secretary of the European Parliamentary Forum for Sexual and Reproductive Rights, said that groups engaging on behalf of this tiny Central American country “reveals an inner cruelty and zealotry they would never dare show in Europe”.

“They would prefer to jail Salvadoran women for miscarriages rather than concede that abortion may be necessary. This is a position very far removed from the mindsets of the vast majority of religious people in Europe,” he added.

Support from US groups

Fifteen US Christian Right and anti-abortion groups also signed the second set of briefs supporting El Salvador. These included the International Organization for the Family – organiser of the World Congress of Families, a global network of US, Russian and other ultra-conservative activists – as well as Family Watch International and the World Youth Alliance.

Eight conservative Latin American groups were also involved, although only one is based in El Salvador itself: the local affiliate of the US anti-abortion organisation Human Life International, which successfully campaigned for the absolute ban on abortion that was introduced in the country in 1999.

According to CRR’s Cárdenas, they were “pursuing a public opinion win, obscuring the case and saying that we seek to decriminalise infanticide”.

The Inter-American Court found El Salvador “internationally responsible for [...] violations of personal liberty, judicial guarantees, equality before the law, the right to life, personal integrity, private life and health” of ‘Manuela’ – the name used to protect the victim’s identity.

The court ordered the government to pay compensation to the woman's children, to publicly assume responsibility for the case and to reform policies and health protocols in order to avoid further criminalisation of obstetric emergencies.

Manuela’s story

Manuela, a poor and illiterate rural woman, had an obstetric emergency at home in 2008. In pain and bleeding heavily, she delivered a stillborn child and fainted.

When she woke up in hospital, medical staff had reported her to the police. She spent eight days handcuffed to a hospital bed and was then sent to prison. She was accused of infanticide, despite inconsistencies in her medical records, and denied a proper legal defence.

Manuela had been seeking healthcare for an illness since 2006. Only in prison did she get a diagnosis. But her cancer (Hodgkin's lymphoma) was never properly treated. She died in 2010 at the age of 33, while serving a 30-year prison term. She left behind two children.

Susana Chávez, from the Latin American Consortium against Unsafe Abortion, said: “Depriving people of rights that brought them dignity and changed their lives for the better […] is not gratuitous or incidental.”

She added: “All this makes sense when we look at the resources mobilised in our countries to twist laws and backtrack the little progress that has been made.”

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Criminalising reproductive health services

Since El Salvador imposed its total ban on abortions in 1999, more than 180 women with miscarriages or other obstetric emergencies have been indicted for abortion or aggravated homicide, with prison terms ranging from 30 to 50 years, according to CRR.

Most of these women have low or no income, live in rural or marginalised urban areas, and are poorly educated. “They are frequently reported by the healthcare staff” they seek for help, noted the Inter-American Court in its ruling.

In this country an “absolute denial and criminalisation of reproductive health services” prevails, said the Colectiva Feminista para el Desarrollo Local (Feminist Collective for Local Development) and Agrupación Ciudadana por la Despenalización del Aborto (Citizens’ Group for the Decriminalisation of Abortion), two Salvadoran women’s rights groups that were plaintiffs in Manuela’s case.

The fact that far-Right groups from three continents got involved in Manuela v El Salvador relates to the repercussions of the result, according to Cárdenas.

“They knew that if we won, it would be a relevant victory for the right to medical confidentiality and for the right to enjoy reproductive healthcare during pregnancy, which would have allowed Manuela to detect her pregnancy, her cancer and the associated risks,” she said.

Moreover, the court’s decision will set a legal precedent for other countries in the region.

Sekulow’s group, the ACLJ, is among seven conservative groups actively battling abortion rights in the US that have spent at least $28m abroad from 2016 to 2019, a new openDemocracy investigation has revealed.

The group spent $5.7m in that time, most of it in Europe. And its European branch, the ECLJ, has intervened in dozens of European court cases against sexual and reproductive rights.

Last year, Poland’s constitutional court voted to ban abortion in cases of foetal defects. The ACLJ submitted arguments in favour of the new restrictions, which were condemned by the Council of Europe as a grave “human rights violation”.

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