BERNARDO CARVALHO DE MELLO
Introduction
Women’s reproductive rights have always been a disputed and controversial theme. However, recent developments have shown that the issue is more contested than before in our highly politically and legally polarised world. Two critical cases demonstrate how this human rights subject is currently a hot topic and exemplify a trend in an erosion of women’s rights.
The overturn of Roe v. Wade reignited the debate on abortion in the world, anticipating a possible moralist and conservative trend that, similarly to what happened in the 1970s when it was first brought before the US Supreme Court but in the opposite direction, will reverberate in other countries, now implying a broader restriction of women’s human rights.
The Beatriz v. El Salvador case showcases how the issue surrounding the legal prohibition of abortion leads it to be practised clandestinely and in an unsafe manner or at high costs. Therefore, the core of the problem lies in the fact that prohibition mainly affects and controls the bodies of poor, black, Latino women with less education and more unfavourable living conditions, further increasing social inequality.
An intersectional view of the controversy appears to be the way to analyse these factors in a way that recognises abortion not as a crime but as part of the universal human right to health and life and by affirming the complexities that arise when multiple factors of marginalisation impact on women’s access to healthcare and reproductive rights.
The Overturning of Roe V. Wade
On the 24th of June of 2022, The United States overturned the landmark 1973 case of Roe v. Wade, which legalised abortion in the US, raising significant concerns and warranting a critical examination of its potential consequences. Such a reversal has far-reaching implications for women’s reproductive rights and bodily autonomy.
The overturning of Roe v. Wade effectively hands the power to regulate abortion back to individual states, leading to a patchwork of varying laws and restrictions across the country. This disproportionately impacts marginalised communities, who may face limited access to reproductive healthcare services due to geographic, economic, or social barriers. In addition, women’s autonomy is undermined as their ability to make decisions about their own bodies and futures is eroded.
Additionally, the overturning of Roe v. Wade does not eliminate the demand for abortion; rather, it pushes many women towards unsafe and illegal procedures, risking their health and lives. History has shown that restricting access to abortion does not reduce the occurrence of abortions but instead drives them underground, perpetuating a cycle of unsafe practices.
Moreover, it reflects a broader erosion of the principles of gender equality and bodily autonomy. It sends a troubling message that women’s rights to make choices about their own reproductive health are not considered fundamental and deserving of protection.
Beatriz V. El Salvador
The Beatriz vs El Salvador case presents a significant challenge to the Inter-American Court of Human Rights, exposing the complex dynamics at the intersection of human rights and reproductive justice.
In summary, Beatriz (an alias used to protect her real name) became pregnant for the first time in July 2011. However, her pregnancy was high-risk due to a series of diseases she had: systemic lupus erythematosus, lupus nephropathy, and rheumatoid arthritis.
She was hospitalised several times and experienced anaemia, exacerbation of lupus symptoms, and pre-eclampsia. She almost died during labour, and her child had to stay in the hospital for over 30 days until being discharged.
Beatriz became pregnant a second time in February 2013, again a high-risk pregnancy. Except for one thing: on the 7th of March, 2013, she received the news that the foetus had anencephaly, a condition incompatible with life outside the womb. At the same time, she was also warned that continuing the pregnancy posed a risk to her own life.
Even though abortion is illegal without any exception in El Salvador, she filed a request for an abortion due to severe risk to her life, initially recognised by the Constitutional Chamber but later reversed by the same Court because they considered that there was no “omissive conduct” on the part of the authorities that would endanger Beatriz’s rights to life and health. On the 3rd of June, she gave birth to the baby, who died 5 hours later. In 2017, after a car accident, she died partly due to the ongoing deterioration of her health conditions exacerbated by her pregnancies.
Faced with the denial that Beatriz’s request for an abortion was a clear violation of her human rights, civil society groups decided to bring the case to the IACHR. They call for justice for Beatriz’s memory and compensatory damages for her family. Additionally, they demand non-repetition measures such as a change in El Salvador’s Penal Code.
While it is pending judgment, the Inter-American Court of Human Rights has a unique opportunity to affirm the principle of reproductive autonomy and recognise the right to access safe and legal abortion when a woman’s life is at risk. By failing to do so, the Court would miss a chance to set a precedent for safeguarding women’s rights in cases where pregnancy endangers their lives, ultimately perpetuating gender-based discrimination and infringing upon individual autonomy in a region where these issues are everyday occurrences.
The Beatriz case highlights the detrimental consequences of restrictive abortion laws on reproductive justice. El Salvador’s absolute criminalisation of abortion denies women the right to make decisions about their own bodies and endangers their health and lives. The court’s decision is an excellent opportunity to address the systemic injustices and social inequalities perpetuated by such laws, further marginalising vulnerable women and perpetuating a cycle of discrimination.
Moreover, the Beatriz case underscores the importance of international human rights standards in shaping domestic laws and policies. International bodies such as the IACHR must play a proactive role in upholding human rights and pressuring governments to reform laws restricting women’s access to safe and legal abortion, ensuring the protection of their fundamental rights.
Furthermore, the case brings to light the influence of cultural and societal factors on the denial of reproductive rights. El Salvador’s deeply rooted conservative values and strong ties to religious institutions have perpetuated a culture of stigmatisation and moral judgment surrounding abortion. This cultural backdrop has hindered progress in recognising and respecting women’s autonomy and their right to make decisions about their own bodies.
The Beatriz case also sheds light on the importance of ensuring access to comprehensive healthcare services, including safe and legal abortion. Denying women access to the complete range of reproductive healthcare options compromises their overall well-being and autonomy. El Salvador’s Constitutional Chamber’s decision to deny Beatriz an abortion perpetuates unequal access to healthcare services and exacerbates existing disparities in health outcomes, particularly for marginalised communities.
It should be stressed that the Beatriz case prompts reflection on the role of legal frameworks and the potential for judicial activism in advancing reproductive justice. The court has the opportunity to interpret existing laws in a way that aligns with evolving societal values and international human rights standards. In addition, the Inter-American Court of Human Rights has a chance to proactively shape legal frameworks to better protect women’s rights and promote social progress.
Intersectionality and the cases
What do both these cases have in common? First, they highlight how, even in 2023, we are still debating the recognition of a fundamental human right. More than the abortion issue itself, Roe v. Wade and Beatriz v. El Salvador show that reproductive rights emphasise the intersection of multiple factors of marginalisation.
The struggle for reproductive rights has been a longstanding battle for women worldwide. However, when examining this issue through the lens of intersectionality,[1] it becomes evident that the fight for reproductive autonomy is far from uniform.
In the context of reproductive rights, these intersecting identities produce a complex web of privilege and oppression. For instance, women of colour often face disproportionate barriers to reproductive healthcare due to systemic racism and economic disparities. They are more likely to face inadequate healthcare facilities, lack of information, and racial biases restricting their choices. Therefore, the fight for reproductive autonomy cannot be divorced from the broader struggle against social inequality.
What’s more, intersectionality introduces the reproductive justice concept, expanding the traditional reproductive rights framework. Reproductive justice stresses the need to consider not only the right to access contraception and safe abortions but also the broader socio-economic, cultural, and environmental conditions necessary for individuals to make reproductive decisions free from coercion and discrimination. It acknowledges that marginalised communities encounter intersecting oppressions that limit their agency in reproductive matters. By adopting a reproductive justice framework, we can address the intersecting concerns of poverty, racism, ableism, and other forms of discrimination that disproportionately impact marginalised individuals.
The impact of intersectionality on reproductive rights is most palpable when examining access to reproductive healthcare. Privileged individuals often enjoy greater access to comprehensive reproductive healthcare, while marginalised groups face significant barriers. For example, women from low-income backgrounds often struggle to access affordable contraception, prenatal care, and adequate maternal healthcare. This inequality is compounded when considering the experiences of transgender and gender-nonconforming individuals, who face additional challenges such as discrimination, limited healthcare providers, and inadequate reproductive healthcare options. Intersectionality illuminates these disparities, underlining the need for inclusive policies that address the unique needs of marginalised communities.
Intersectionality also plays a crucial role in legal battles surrounding reproductive rights. Court cases and legislation focusing solely on gender-based discrimination may inadvertently ignore the specific challenges individuals face at the intersections of multiple identities. For instance, laws restricting reproductive autonomy may disproportionately affect low-income women of colour or individuals with disabilities. In addition, intersectional perspectives provide a more comprehensive understanding of the diverse barriers faced by different communities, urging lawmakers and activists to adopt an inclusive approach that upholds the rights of all individuals.
Conclusion
In sum, the fight for reproductive justice and fundamental human rights regarding abortion and comprehensive women’s healthcare is controversial in the political, legal and, more broadly, social arenas.
Scepticism regarding the substantial effects of international human rights court judgments stems from concerns about the ability to enforce and effectively implement these judgments consistently and meaningfully across different countries and legal systems due to factors such as non-compliance by states, political resistance, resource constraints, and cultural relativism.
Nevertheless, Roe v. Wade and Beatriz v. El Salvador illustrate how the judicial system does have the power to make critical changes in society and how we, as legal scholars, can advance the human rights debate and contribute to societal change. And as both cases illustrate, the backlash against women’s rights is a current and dangerous trend that needs special attention from all sectors of society, especially the legal and social activism fields.