The Peremptory Right of Women to Life: Why El Salvador Should Authorize Abortion for Woman who Faces Substantial Risk of Death (I) - par Théodore CHRISTAKIS

The Supreme Court and the authorities of El Salvador have the obligation under International Law to authorize a woman to receive a life-saving medical abortion despite the anachronistic total ban on abortion in El Salvador’s law.

“Beatriz” is the pseudonym (intended to protect her identity) of a 22-year-old woman in El Salvador who is now more than five months pregnant. The foetus she is carrying is missing a large part of its brain and skull, which means almost certain death either before or immediately after birth. The mother has been diagnosed with a number of severe illnesses, including lupus and kidney disease, and doctors say she faces a substantial risk of dying if she continues with the pregnancy, but have not yet treated her because they fear that if they end the pregnancy they might be prosecuted under the country’s total ban on abortion. Indeed, under these laws if the woman receives an abortion she risks up to 50 years in prison and the doctors who perform the act up to 12! It has now been almost two months since the doctors requested permission to provide Beatriz with the treatment she needs, but El Salvador’s Attorney General has said that the country’s Penal Code will be applied if Beatriz receives an abortion. The case has been brought to the country’s Supreme Court, but it has stalled for weeks. A hearing was finally expected to take place today (15th May), but it is unclear whether the court will issue a final decision immediately. With each day that passes, the pregnancy poses more danger.

The case became “internationalized” on April 29, 2013, when the Inter-American Commission on Human Rights granted protection measures in order “to protect the life, personal integrity and health of “B”, asking the State of El Salvador to authorize this therapeutic abortion within 72 hours of the Commission’s letter. More than two weeks later though, El Salvador has failed to comply.

This case is very similar to a recent Irish case which, unfortunately, ended tragically with the death of a 31-year-old woman who was also denied a lifesaving abortion.Savita Halapannavar, found out at 17 weeks into her pregnancy that she was having a miscarriage and that her foetus had no chance of survival. However, despite repeated pleas for an abortion, she was told that it would be illegal while the foetus’s heart was still beating. She contracted septicemia and died on October 28, 2012. During a recent inquiry the experts confirmed that her death would have been averted if she had received an abortion.

These two recent cases could raise a lot of questions concerning the problem of abortion in general. According to the WHO there are an estimated 68,000 deaths and millions of hospitalizations of women every year due to unsafe abortions. However this is not the topic I intend to discuss here. In this comment I will focus exclusively on the existence of an undeniable right of women to abortion in cases such as the“Beatriz” and the “Halapannavar”.

In both these cases there was a “strong probability of maternal death” and a foetus that was not viable. Denying an abortion to these women was not only ethically outrageous, but also illegal from an International Law point of view. In the “Beatriz”case, where a potentially tragic outcome can still be avoided, the authorities should fill the gaps of domestic law by referring to the preeminence of International Human Rights Law, and more precisely the peremptory right of women to life, the prohibition of torture and cruel, inhuman and degrading treatments and other rights (right to private life, non-discrimination, etc.).

Among International Treaties only the 2003 Protocol on the Rights of Women in Africa (ratified by 28 African States) explicitly states that States shall authorize “medical abortion in cases […] where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother…” (Art. 14.2(c)).

Nonetheless Human Rights Treaty Bodies (HRTB) have constantly interpreted the right to life, the peremptory character of which is often asserted, as requiring States to permit abortion where necessary to protect the woman’s health. This has been, for example, the constant position of the Human Rights Committee in relation with interpretation of article 6 of the ICCPR (of which El Salvador is a party). The HRC has always criticized in its concluding observations (within the reporting system) restrictive abortion laws and the criminalization of abortion, especially when women’s lives are at risk, considering that such a blanket ban is incompatible with women’s right to life under Article 6 (see for ex. Chili, §8). The HRC has also consistently asked States who recognize a right to abortion in life threatening situations, to adopt measures so that women will effectively be able to exercise it.

At the European level there should be no doubt that denying a life saving abortion to a woman is contrary to article 2 of the ECHR. In 1980 in Paton v. United Kingdom, the EComHR already hinted that a woman’s right to life takes precedence over a foetus’ potential right to life. In cases such as “Beatriz” and “Halapannavar”, where the foetus was clearly not viable, there could be no question of such a hypothetic clash between the mothers peremptory right to life and a foetus’s potential right to life (which could be recognized under some domestic jurisdictions under the national margin of appreciation doctrine). In the controversial December 2010 ruling in A., B. & C. v. Ireland the ECHR recognized such a “margin of appreciation” to Ireland to ban abortion, but also agreed unanimously that Ireland had violated Article 8 ECHR by failing to provide the third applicant, whose life was at risk due to her pregnancy, with adequate procedures bywhich she could establish her right to a lawful abortion.

In the Interamerican system, of which El Salvador is a part, the IAComHR said in the famous 1981 Baby Boy decision that Article 4 of the American Convention did not preclude liberal abortion legislation. On 10 December 2006, the Rapporteur on the Rights of Women of the IAComHR issued an unprecedented letter of concern to Nicaragua, declaring its recently passed total abortion ban contrary to international law. He emphasized that ‘therapeutic abortion has been internationally recognized’. The recent precautionary measures of the IAComHR in the “Beatriz”case are just another proof of the right to life saving abortion under the Interamerican system.

Going beyond Treaty Law, there is a right to life saving abortion under customary law. Indeed 97% percent of existing States authorize therapeutic abortion in cases of risk to the mother’s life. An overwhelming “practice” in this field is coupled by opinio juris. Even a State with very restrictive abortion legislation such as Ireland recently felt the need to adopt protocols for therapeutic abortion in order to comply with its international obligations. And due to the peremptory character of the right to life, there is no place for “persistent objectors” for the very few States (El Salvador, Chile, Malta…) that maintain a ban on life-saving abortions: indeed, as the IAComHR said in 2002 in the Domingues v. United States case, an international jus cogens norm such as the right to life “binds the community of States” and “cannot be validly derogated from, whether by treaty or by the objection of a State, persistent or otherwise”.

Although the right of women to life explains why El Salvador should immediately authorize therapeutic abortion for “Beatriz”, we would add just a few words concerning the prohibition of torture and cruel, inhuman and degrading treatments. El Salvador is party to the first ICCPR optional Protocol and it should thus be aware of the land mark K.N.L.H. v. Peru case decided by the HRC in 2005 which is very similar to the“Beatriz” case. This case involved a 17-year-old Peruvian girl who was diagnosed, when she was three months pregnant, with an anencephalic foetus certain to die. Severely depressed and in order to avoid prolonging her terrible distress, the woman sought an abortion, but the authorities refused on the grounds that an abortion would breach Peru’s restrictive abortion laws. The woman was forced to carry her pregnancy to term, gave birth to an anencephalic girl and breast-fed her for the next four days. In the HRC, she claimed that the stress of knowing that she would give birth to a doomed baby, seeing the baby’s extreme deformities and breast-feeding for four days contributed to extreme mental suffering. The HRC agreed, finding that the psychological stress and consequent deep depression were clearly foreseeable. ‘The omission on the part of the State in not enabling the author to benefit from a therapeutic abortion was, in the Committee’s view, the cause of the suffering she experienced’ and a “cruel and inhuman treatment” under Article 7 of the ICCPR.

Although El Salvador has not ratified the Optional Protocol to the CEDAW, it is interesting to conclude by mentioning the 2011 L.C. v. Peru case which was ruled by the CEDAW. In L.C., a 13-year-old girl was also denied an abortion necessary to preserve her health and as a result is now quadriplegic. Her pregnancy was the result of rape. The CEDAW ruled that Peru must not only amend its law to allow women to obtain an abortion in cases of rape and sexual assault but also guarantee access to abortion services when a woman’s life or health is in danger.