Introduction

Manuela and Others v El Salvador represents a missed opportunity for advancing abortion access and sexual and reproductive health and rights (SRHRs) in international human rights law (IHRL). Manuela concerned a Salvadoran woman arrested for having an obstetric emergency and her subsequent trial and incarceration. The case occurred in the wider context of El Salvador’s complete criminalisation of abortion and active prosecution of those suspected of having had one. While the Inter-American Court of Human Rights (IACtHR) found El Salvador responsible for multiple violations of Manuela and her family’s human rights enshrined in the American Convention on Human Rights (ACHR) and Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Belém do Pará Convention), it shied away from identifying El Salvador’s abortion legislation as the source of these violations. Despite growing consensus in IHRL that abortion must be decriminalised at a minimum in certain circumstances, other inter-American human rights system (IAHRS) bodies subscribing to this position, and extensive evidence that El Salvador’s abortion legislation is resulting in severe, repeated, and systemic human rights violations, the IACtHR failed to use this judgment to articulate support for abortion access and SRHRs.

This case note first summarises the facts of Manuela, before providing an overview of the Court’s reasoning. It then discusses the missed opportunities characterising this judgment: the Court’s failure to engage in a critique of El Salvador’s abortion legislation; its approach to feminist/gender-sensitive legal reasoning; and its limiting of SRHRs to the right to health alone, rather than understanding them as a family of rights.

Background

On 26 February 2008, Manuela, a pregnant single mother of two, fell and experienced severe pelvic bleeding. For the previous eighteen months she had repeatedly attended the local health clinic with symptoms including nausea and lumps on her neck. As it would transpire, her symptoms were early signs of Hodgkin’s lymphoma, a cancer that is easily treatable if diagnosed promptly, and which potentially contributed to her pregnancy loss.Footnote 1

Manuela was taken to hospital and, since she was experiencing heavy vaginal bleeding, hospital staff reported her to the fiscalía (public prosecutor) before providing her with medical care because they suspected her of self-inducing an abortion. The following day, she was handcuffed to her hospital bed; police interrogated her while she was still in poor health and without a lawyer present. Police officers also aggressively questioned her parents, accusing them of covering up the alleged crime and threatening to investigate them as accomplices. They forced her illiterate father to sign a document that they did not explain to him. This document, a formal accusation against Manuela, was later used as a key piece of evidence against her. Manuela was held in pre-trial detention for six months. She was represented by a poorly prepared defence lawyer, and unreliable evidence was used against her. She was sentenced to thirty years in prison for aggravated homicide. Manuela spent two years in prison, during which time she was diagnosed with Hodgkin’s lymphoma. She was not provided with consistent chemotherapy treatment, and so she died in April 2010.Footnote 2

In 2012, three non-governmental organisations (NGOs) filed a petition with the Inter-American Commission on Human Rights (IACHR) on her behalf (Center for Reproductive Rights 2014, 10–11). In 2018, the IACHR issued its decision on the merits: it determined that El Salvador was responsible for violating Manuela’s rights to life, personal liberty, fair trial, privacy, equal protection, judicial protection, and health enshrined in the ACHR, in conjunction with its non-discrimination and domestic effect obligations.Footnote 3 It also determined that there had been violations of state obligations to prevent violence against women under the Belém do Pará Convention.Footnote 4 The Commission referred the Manuela case to the Court in 2019 (IACHR 2019b), which issued its judgment in November 2021.

The Court found El Salvador responsible for violating Manuela’s rights to personal liberty and to be presumed innocent; her rights to judicial guarantees, personal integrity, and equality before the law; and her rights to life, personal integrity, health, and private life.Footnote 5 It also found El Salvador responsible for violating her parents’ and children’s rights to personal integrity due to the profound suffering and anguish caused by Manuela’s arrest, trial, incarceration, and death.Footnote 6

Issues and Decision

The Court focused on three main issues in Manuela: pre-trial detention; fair trial and due process; and medical confidentiality and Manuela’s medical treatment during incarceration.

Pre-Trial Detention

Citing previous case-law,Footnote 7 the Court stated that pre-trial detention is the most severe form of precautionary measures and should only be used in exceptional circumstances. If stringent conditions are not met, pre-trial detention violates the ACHR Article 7 prohibition against arbitrary detention.Footnote 8

Salvadoran legislation requires pre-trial detention for those accused of aggravated homicide.Footnote 9 The Court ruled that automatic pre-trial detention and the insufficiently justified pre-trial detention order against Manuela violated her rights to personal liberty and security (art 7.1) and to be free from arbitrary imprisonment (art 7.3), read in conjunction with Articles 1.1 and 2.Footnote 10 Pre-trial detention for six months without review also violated Manuela’s right to be presumed innocent (art 8.2), read in conjunction with Articles 1.1 and 2.Footnote 11 El Salvador must bring its legislation in line with the Court’s pre-trial detention standards within the next two years.Footnote 12 A legislative review has not yet begun.

Fair Trial and Due Process Issues

The Court considered three fair trial and due process issues: adequate defence, gender stereotypes, and Manuela’s sentencing.

The right to an adequate defence will be violated if the public defender’s actions or omissions amount to inexcusable negligence or a manifest failure to exercise their role.Footnote 13 The Court noted multiple failures by Manuela’s public defender resulting in a violation of this right, including not providing adequate evidence and not filing an appeal (arts 8.2d and 8.2e).Footnote 14

The Court noted that using gender stereotypes in criminal trials can violate the rights to be judged by an impartial tribunal and to be presumed innocent (arts 8.1, 8.2).Footnote 15 The investigator and trial judge’s statements indicated that they assumed Manuela was guilty of murdering her newborn baby because she was ashamed of being pregnant while single, that it was an egregious crime because it went against ‘natural’ maternal instincts, and that she should have protected her baby regardless of her health at the time she gave birth.Footnote 16 The Court highlighted the gender stereotypes informing these assumptions: that rejecting motherhood is deviant, and that women must prioritise their children’s well-being above all else.Footnote 17 The Court concluded that gender stereotypes prevented state authorities from pursuing all lines of inquiry or questioning the unreliable evidence resented, violating Manuela’s rights to a fair trial, to be presumed innocent, and to equality before the law (art 24), read in conjunction with Article 1.1 ACHR.Footnote 18 El Salvador was required to implement gender-sensitivity training for state and judicial authorities within one year.Footnote 19 It did not do so.

Regarding Manuela’s sentencing, the Court noted that disproportionate sentences are contrary to Article 5.2, which prohibits cruel, inhuman or degrading punishment or treatment, and the “social readaptation of prisoners” requirement under Article 5.6.Footnote 20 The Court found that sentencing a woman to thirty years in prison for a crime committed during the perinatal period was disproportionate, and that the current penalty for infanticide was cruel, resulting in violations of those rights.Footnote 21 This ruling requires El Salvador to reform its penalties for infanticide within the next two years.Footnote 22 It has not yet done so.

Medical Confidentiality and Medical Care

The Court considered Manuela’s care in hospital, medical confidentiality, and her treatment while in prison.

Nearly four hours elapsed between Manuela being admitted and her receiving medical treatment; the lumps on her neck were not examined; and she was handcuffed to the bed.Footnote 23 For failing to provide Manuela with acceptable, quality medical attention and for using handcuffs without justification, the Court found the state responsible for violating Manuela’s rights to be free from torture and ill-treatment (art 5.2), to personal integrity (art 5) and to health (art 26).Footnote 24

The Court interpreted medical confidentiality as falling within the scope of the rights to privacy (art 11) and health.Footnote 25 It focused on El Salvador’s contradictory medical confidentiality legislation, which requires medical professionals to maintain confidentiality and not present statements to police about patients, but also requires them to report suspected crimes.Footnote 26 The Court criticised this legislation, the lack of specific regulations for obstetric emergencies, and Manuela’s doctor’s statement to the police.Footnote 27 Sharing information about Manuela’s health on the basis of vague and contradictory legislation violated her rights to privacy and health, and the direct effect obligation under Article 2 ACHR.Footnote 28 El Salvador must now adopt clear medical confidentiality regulations and a protocol for women experiencing obstetric emergencies.Footnote 29 It has not yet done so.

There is no evidence that Manuela received a full medical examination once incarcerated, despite her having experienced an obstetric emergency.Footnote 30 Manuela was also not provided with consistent medical treatment once diagnosed with Hodgkin’s lymphoma.Footnote 31 For these failures, the Court ruled that Manuela’s rights to health (art 26), bodily integrity (art 5), freedom from inhuman punishment (art 5.2), and the positive obligation to guarantee the right to life (art 4.1) had been violated.Footnote 32

Regarding the scope of discrimination Manuela experienced, the Court criticised the practice of reporting a crime before providing medical treatment. Reporting the crime, the doctor’s statement to police, and sharing Manuela’s medical history violated her rights to equality (art 24) and health in conjunction with article 1.1.Footnote 33 The Court also found that the ambiguous medical confidentiality legislation created a situation where women had to decide between seeking medical care and potentially being reported to the authorities, violating state obligations to abstain from violence against women under article 7a of the Belém do Pará Convention.Footnote 34

Discussion

Manuela made some positive contributions to jurisprudence in the three areas discussed above, but it failed to address the central issue giving rise to this case: El Salvador’s complete criminalisation of abortion and the active prosecution of those suspected of having had one. Additionally, the judgment features inconsistent, problematic reasoning from a feminist perspective. It has also contributed to the growing trend to reduce SRHRs to the right to health alone, when SRHRs need to be understood as a family of rights that includes but is not limited to that right.

Failure to Critique Abortion Legislation

Approximately 200 women and girls have been prosecuted in El Salvador since abortion’s complete criminalisation in 1998 (Agrupación Ciudadana 2019; BBC News 2021). Like Manuela, pregnant people presenting for emergency care to public hospitals are often accused of the crime of abortion, with this charge then increased to aggravated homicide. The majority of those prosecuted and/or incarcerated are poor, in precarious employment, and have received little or no schooling (IACHR 2021, 200). Many were interrogated while they were still undergoing medical treatment, and without a lawyer present (IACHR 2021, 200). They received inadequate representation by public defence lawyers, and they were sentenced to an average of thirty years in prison on the basis of unreliable evidence (Viterna and Bautista 2017; IACHR 2021, 200–202).

Despite Manuela exemplifying these issues, the Court states that it will only “take into account” the wider context of the complete criminalisation of abortion: it will not discuss it in greater detail or rule on it.Footnote 35 The Court’s reasoning is that Manuela did not concern a self-induced abortion.Footnote 36 This reasoning is flawed: most of the women prosecuted for abortion-related offences did not have abortions either (IACHR 2021, 198–205). The Court is evading the core issue giving rise to this case, even though there is sufficient jurisprudence and evidence for the Court to rule on the human rights violations caused by El Salvador’s abortion legislation.

Firstly, there is a growing consensus in IHRL that abortion should be permitted at a minimum in cases of risk to the pregnant person’s life or health, rape or incest, and lethal or fatal foetal abnormalities (e.g., IACHR 2018a).Footnote 37 El Salvador’s current legislation falls well below this standard.

Secondly, most of the IAHRS’s recent work on the negative human rights impact of criminalising abortion has concerned El Salvador, indicating awareness of the severity of the situation there. This work includes the Commission’s recent El Salvador country reports (IACHR 2018a, 5–8; IACHR 2019a, 12–3, 19; IACHR 2021, 195–205); the Commission’s precautionary measures and the Court’s provisional measures in the Beatriz controversy;Footnote 38 and the Commission’s decisions on the merits in ManuelaFootnote 39 and Beatriz (IACHR 2022). Beatriz was a woman forced by El Salvador’s abortion legislation to carry an unviable pregnancy to term, despite the risk to her life and health, and despite her medical team recognising that an abortion was medically necessary (IACHR 2022). Her case will come before the Court in 2023.

Thirdly, other inter-American bodies have developed relevant SRHR standards, including the Pan American Health Organization, the Inter-American Commission of Women, and The Follow-Up Mechanism to the Belém do Pará Convention (MESECVI) (MESECVI 2008, 21; CIM, IDEA 2013, 141–2; PAHO 2018, 36, 51). MESECVI’s position is that criminalising abortion constitutes torture, and it calls on states to permit access to abortion at a minimum in the cases of a risk to life or health, fatal foetal abnormality, and sexual violence (MESECVI 2014, 7).

Instead of drawing on this work, the Court only discusses El Salvador’s complete criminalisation of abortion briefly at the beginning of the case.Footnote 40 It highlights UN treaty monitoring bodies’ criticism of El Salvador’s abortion legislation, but it does not refer to other inter-American bodies' work or its own intervention in the Beatriz controversy. The Court could have held that there is sufficient jurisprudence recognising that abortion should be permitted at a minimum in certain circumstances, that El Salvador’s current legislation falls well below this standard, and that there is extensive evidence of this legislation resulting in human rights violations. Taking this approach would have enabled the Court to consolidate a coherent inter-American stance on abortion and SRHRs.

There are at least three potential explanations for the Court taking this cautious approach. It may have been mindful of the risk of backlash and its material consequences. When engaging with controversial subjects and/or working in a politically fraught context, judges “rule in ways that minimise risk” such as by “resorting to forms of argumentation that narrow the scope of legal outcomes” (González-Ocantos and Sandholtz 2022, 97). The IAHRS has been no stranger to backlash, withdrawals, and attempts to restrict its work, including in relation to abortion. In 2019, the Trump administration withdrew over $200,000 in IACHR funding in response to what it perceived as pro-abortion lobbying by the Commission (Palacios Zuloaga 2021, 919). It would be understandable albeit unfortunate if this context influenced the Manuela judgment.

Abortion exceptionalism might also be at play. Abortion exceptionalism refers to how abortion is treated as an issue requiring alternative or more intensive legal scrutiny and regulation than other issues because it is perceived as so controversial and politically sensitive (Vanderwalker 2012, 3; Corbin 2014, 1210). Although the IAHRS has considered the human rights aspects of abortion with increasing frequency and confidence in recent years, it often avoids using the word ‘abortion’, instead alluding to human rights standards in the field of SRHRs more broadly (Palacios Zuloaga 2021, 919).

The Court might also have shied away from engaging with the issue of abortion due to differing opinions among the judges. Judge Vio Grossi’s partially dissenting opinion argues that referring to the criminalisation of abortion in the judgment was unnecessary, and that there is no inter-American or international norm recognising a right to abortion.Footnote 41 There might not be a recognised right to abortion, but there is increasing consensus that failing to provide abortion access in at least certain circumstances—and actively prosecuting those who have abortions—violates human rights (Smyth 2020, 118–9).Footnote 42 By failing to recognise this in its judgment, the Court failed to address the root causes of the human rights violations in the Manuela case.

Inconsistent Feminist Legal Reasoning

One of the main features of feminist legal reasoning is challenging gender biases in doctrine and reasoning (Hunter 2010, 35). There are promising indications of feminist legal reasoning in the Manuela judgment, in line with the Court’s ostensible commitment to gender-sensitive reasoning, but also some missed opportunities.

The Court’s analysis of gender stereotypes at trial and medical confidentiality indicates an understanding of and commitment to feminist legal analysis. When analysing the investigator and trial judge’s comments, the Court draws a connection between their discriminatory comments about Manuela and the stereotypes about women and motherhood underpinning them.Footnote 43 The Court also makes use of terms common in feminist analysis such as “patriarchal system”, “subordination”, and “gender roles”.Footnote 44 When analysing medical confidentiality issues, the Court states that “women’s sexual and reproductive freedom and autonomy has been historically limited, restricted, or denied due to negative, prejudiced gender stereotypes”—a statement resonant with feminist analyses of law, power, and reproduction.Footnote 45

Feminist legal analysis is therefore interspersed throughout the Manuela judgment, but it is not applied consistently throughout. For a truly gender-sensitive or feminist approach, the Court should have framed the entire case in terms of unequal gender relations. It should have considered how these unequal gender relations manifest in and are perpetuated by El Salvador’s abortion legislation. Manuela would never have been arrested, put on trial or incarcerated were it not for the complete criminalisation of abortion, the active prosecution of those suspected of having had abortions for aggravated homicide, and the disproportionate impact of this legislative context on poor rural women and girls.

Another shortcoming in the Court’s approach to feminist/gender-sensitive legal reasoning is in its discussion of mitigating circumstances and diminished culpability for women who commit infanticide in the post-partum period. Some of the phrasing is essentialist. The Court refers to “the particular state of women in the puerperal or perinatal period”, without providing more detail on what this “particular state” is or acknowledging that its intensity might vary depending on the person.Footnote 46 The Court also states that “the psychological fragility” of women who give birth is exacerbated by giving birth alone and unassisted.Footnote 47 More careful phrasing would have allowed the Court to acknowledge the psychological impacts of giving birth, and that some women may experience major psychological issues after giving birth, without implying that all women are ‘fragile’ and liable to commit crimes due to their biology. In some respects, the Court’s wording perpetuates tropes that feminist legal reasoning seeks to challenge, such as the presumption that women are inherently less rational and moral than men due to their biological capacity for pregnancy and birth (e.g., Tuana 1993, 79).

(Mis)interpretation of SRHRs

SRHRs combine four interrelated fields: sexual health, sexual rights, reproductive health, and reproductive rights. They affirm the rights and freedoms of people of all sexual orientations and gender identities to enjoy safe, satisfying sexual relations free of coercion, discrimination, and violence, and their freedom to make informed decisions about their sexual and reproductive health, including if or when to have children (e.g., RHM and ARROW 2011). Multiple human rights have been recognised as necessary for realising SRHRs, including the right to life, freedom from torture, the right to privacy, and the right to health (UNFPA et al. 2014, 89–115; WHO 2022, 7–11). SRHRs have their origins in Black and Global South feminist praxis and the concepts of reproductive autonomy, reproductive justice, and reproductive freedom (Ackerman et al. 2017, 2). These concepts emphasise that SRHRs can only be realised through systemic political, economic, social, and legal change.

The Court partly draws on this approach to SRHRs by echoing terminology used in feminist and UN definitions such as “the right to make autonomous decisions…free from violence, coercion, and discrimination”.Footnote 48 However, the Court erroneously defines SRHRs as part of the right to health, as opposed to an umbrella of rights that includes but is not limited to this right. This approach may reflect developments in the UN human rights system: initially used as an umbrella term, SRHRs are increasingly being referred to as part of the right to health only.Footnote 49 This development is concerning as it risks SRHRs being ‘siloed off’ into the right to health, when realising SRHRs requires engaging with multiple rights.

The Court may have taken this approach due to differing opinions among IACtHR judges on whether the American Convention even includes a right to health. Only article 26 of the ACHR concerns economic, social, and cultural rights (ESCRs), and the justiciability of these rights under the ACHR is a controversial issue among IACtHR judges (Barbosa 2018). Two judges expressed their opposition to the Manuela ruling that Article 26, interpreted to include the right to health, had been violated. They argued that attempting to interpret direct justiciability of ESCRs goes against literal interpretation of the ACHR and the Vienna Convention, among other issues.Footnote 50 Given the representation of this conservative, literal approach to treaty interpretation on the bench, defending the existence of a right to health under the ACHR that includes sexual and reproductive health was perhaps enough controversy for the Court to contend with in Manuela.

Conclusion

In Manuela, the IACtHR shied away from providing the resounding critique of El Salvador’s abortion legislation that is required to prevent ongoing human rights violations there and throughout the region. Its failure to do so is disappointing given growing consensus in IHRL that abortion must be decriminalised at a minimum in certain circumstances, indications that actors within the IAHRS support this position, and extensive evidence that El Salvador’s abortion legislation is resulting in human rights violations.

However, this reticence is also understandable: fear of backlash, abortion exceptionalism, and differing views among judges may all go some way to explain why the IACtHR did not come out strongly in support of abortion rights. The Court may yet recognise the need for abortion access: the case of Beatriz is due before the IACtHR, a case in which the causal relationship between El Salvador’s complete criminalisation of abortion and Beatriz’s experience is more apparent than in Manuela. At a time when many OAS member states still have heavily restrictive abortion legislation or have introduced further restrictions on abortion access, the need for the region’s human rights court to come out strongly in favour of safe, straightforward, and legal abortion access is all the more pressing.