Upcoming decision of the Inter American Court of Human Rights on access to therapeutic abortion?
By Camila Gianella Malca, Guest Researcher, PluriCourts
Last August the Inter-American Commission on Human Rights- IACHR received a new petition on behalf of a Costa Rican woman who was denied the therapeutic abortion she requested.
The petition was filed by the Costa Rican NGO Colectiva por el Derecho a Decidir, the Center for Reproductive Rights before the Inter-American Commission on Human Rights (IACHR) on behalf of “Aurora” (a pseudonym). Last year, Aurora, a 32-year-old Costa Rican woman, was forced by the Costa Rican authorities to carry on a pregnancy of a fetus with a fatal impairment. During the pregnancy she suffered from depression and physical pain, but therapeutic abortion was denied. She gave birth in December 2012, and as was predicted, the baby died less than one hour after the birth.
While abortion is illegal in Costa Rica in most circumstances, the country’s penal code allows for the procedure when a woman’s life or health is at risk. In practice, however, access to this procedure is difficult.
The barriers to access to legal and safe abortion in Costa Rica are far from an exception in a region characterized by restrictive abortion laws. Only Mexico City (since 2007) and Uruguay (since 2012) have waived criminal penalties for abortion in the first 12 weeks of gestation. In the rest of the countries, abortion is only allowed under certain circumstances, as in the case of rape (Buenos Aires, Argentina, Colombia and some Mexican States), when the fetus has serious malformations (such as Brazil and Colombia), or when the health of the mother is in risk (Argentina, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Peru, some Mexican States). However, three countries in the region, Chile, El Salvador and Nicaragua, have legislation that ban abortion in any circumstance, even when the life of the woman is in risk. In Chile, therapeutic abortion, allowed since 1931, was abolished in 1989 at the end of the dictatorship. This rule from the dictatorship has not been amended by the democratic governments. Nicaragua adopted a complete abortion ban in 2006. Before this complete ban, the 1891 Criminal Code allowed therapeutic abortion to save the woman's life. Similarly, in El Salvador, the 1973 Criminal Code authorized abortions for therapeutic or eugenic reasons and in cases where the pregnancy is the outcome of rape. In 1997, the Salvadorian Legislative Assembly approved the complete ban of abortion.
Aurora’s is not the first case filed before the IACHR on the access to therapeutic abortion. In 2008 a case was filed also against Costa Rica, and early this year, a petition was lodged by a group of organizations in behalf of “Beatriz”, a 22-year-old Salvadoran woman, who suffers from Systemic Lupus Erythematosus aggravated with lupus nephritis and rheumatoid arthritis. Beatriz’ health was in danger due to her pregnancy. The fetus was diagnosed as an anencephalic fetus—a fetus without a brain— which is a major anomaly incompatible with life outside the womb. Despite of this, Beatriz was denied access to therapeutic abortion.
On April 29, 2013, the IACHR adopted Precautionary Measures in favor of Beatriz and required that the Salvadoran State allow Beatriz accessed to therapeutic abortion as was indicated by her doctors with the purpose of safeguarding the life, personal integrity, and health of Beatriz. Nonetheless, the State did not abide by the IACHR’s decision, and because of that, the IACHR requested the intervention of the Inter-American Court.
The Inter-American Court on Human Rights - IACtHR issued a decision requiring the Salvadoran State to take all the medical measures necessary to ensure, in an urgent manner, the due protection of the right to life and personal integrity of Beatriz, which means interrupting her pregnancy in accordance with the recommendations of her doctors. Salvadoran authorities did not comply. However, Beatriz had a laparotomy — a surgical abdominal incision (“not an abortion” according to the Ministry of Health).
It is not clear if the IACHR will intercede in cases like the Costa Rican ones where the life of women is not in imminent risk, as in the case of Beatriz. However, what is clear is that this is a highly contentious topic in the region, and that the IACHR will continue receiving cases. Under this context, it is likely that the IACHR will issue a decision that will constitute a milestone in the region, but it is not easy to anticipate which position will be taken by the IACHR.
Positions towards abortion are highly polarized in Latin America, and debates are highly politicized and charged with moral discourses. Is the IACHR willing to open the possibility to more controversies in the current context? Since Venezuela withdrew from the IACtHR last September, the country has accused the Court of serving U.S. interests.
Previously, Venezuela and the countries that comprise the Bolivarian Alliance for the Americas (ALBA) developed and presented several proposals to reform the IACHR. In 2011 Brazil decided to suspend its annual contribution to the IACHR in retaliation to the issuance by the IACHR of a restraining order to suspend the construction of the Belo Monte hydroelectric plant in Pará, because of possible impacts on the local indigenous community. Brazil has regularized its contributions, but these reactions show that not all the decisions of the IACHR are acknowledged, and countries can react against the whole system.