This post was written by Andrés Constantin. Andrés is an Adjunct Professor of Law at Universidad Torcuato Di Tella. Any questions or comments can be directed to firstname.lastname@example.org.
The opportunity has presented and it is time to seize it
The ruling party in El Salvador, Frente Farabundo Martí para la Liberación Nacional (FMLN) has proposed a law decriminalizing abortion in cases where the mother’s life is in danger or where the pregnancy is the result of rape to the Parliament.
It has been almost two decades since El Salvador criminalized abortion in all circumstances, despite the global commitment at the International Conference on Population and Development to prevent unsafe abortion. The criminalization of abortion forces women and girls to resort to unsafe abortions to save their own lives. Consequently, since 1998, women have been prosecuted and convicted on charges of induced abortion with sentences of up to 40 years imprisonment.
The health and human rights impact of restrictive abortion laws is devastating on women’s and girls’ life, leaving them at risk of preventable maternal deaths. Evidence shows that between 8% to 18% of maternal deaths worldwide are due to unsafe abortion. Indeed, the World Health Organization has noted that maternal mortality increases in countries that criminalize abortion.In a 2012 report on maternal mortality, the UN Human Rights Council noted that “[i]f abortion laws are overly restrictive, responses by providers, police and other actors can discourage care-seeking behavior,” leading women to choose between prison or death.
In this post, due to words constraints, I will just focus on the impact of criminalization of abortion on women’s right to life.
Decriminalization of abortion is necessary for the respect of the women’s right to life
El Salvador has ratified a number of human rights instruments, thus undertaking a legal obligation to protect and guarantee human and women’s rights, in particular. Moreover, the Salvadorian Constitution provides for the protection of the right to life, liberty and health, and further considers international treaties as laws of the country.
The right to life has been recognized as part of customary international law and is provided in several international and regional human rights treaties. In that sense, article 6 (1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” In 2011, the Special Rapporteur on violence against women stated that the total ban on abortion in El Salvador puts women’s and girls’ lives at risk, constituting a violation of the right to life.
Whereas some opponents of abortion have resorted to Article 6(1) in order to argue that the right to life includes the fetus, and consequently abortions violate this right by ending the life of a fetus, it must be noted first that it is generally recognized that international human rights conventions are not applicable before birth of a human being, and second that during the drafting of the ICCPR, a set of proposals protecting the right to life from the moment of conception were rejected and it was understood that Article 6(1) of the Covenant stipulates that the right to life is inherent to the “human being” understood as the person that is born.
Likewise, the CEDAW Committee, the body that monitors compliance with the Convention on the Elimination of All forms of Discrimination against Women (CEDAW), has stated that “unsafe abortion is a leading cause of maternal mortality and morbidity. As such, States parties should legalize abortion at least in cases of rape, incest, threats to the life and/or health of the mother, or severe fetal impairment, as well as provide women with access to quality post-abortion care, especially in cases of complications resulting from unsafe abortions. States parties should also remove punitive measures for women who undergo abortion.”
Similarly, the Committee on the Rights of the Child, which monitors the implementation of the Convention on the Rights of the Child, has urged States to “decriminalize abortion, ensure that girls have access to safe abortion, review legislation with a view to guaranteeing the best interests of pregnant adolescents, and ensure that their views are always heard and respected in abortion decisions.”
Moreover, the Committee on Economic, Social and Cultural Rights, which monitors compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR) in its General Comment No. 22 (2016) on the right to sexual and reproductive health, noted that denial of abortion often leads to maternal mortality or morbidity, which in turn constitutes a violation of the right to life or security and expressed its deep concern regarding the general prohibition of abortion with no exceptions.
Additionally, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health noted that an “absolute prohibition [of abortion] under criminal law deprives women of access to what, in some cases, is a life-saving procedure” and recommended that states decriminalize abortion.
At this point, we should recognize that it is true that the American Convention on Human Rights provides the right to life from the moment of conception. However, Article 4 has been interpreted by both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The Commission, in 1981, found that the Convention’s founders “left open the possibility that states parties… could include in their domestic legislation ‘the most diverse cases of abortion’.” For its part, the Court stated that “it can be concluded from the words ‘in general’ that the protection of the right to life under this provision is not absolute, but rather gradual and incremental according to its development, since it is not an absolute and unconditional obligation, but entails understanding that exceptions to the general rule are admissible.”
Article 144 of El Salvador’s Constitution provides that in cases of conflict between domestic and international law, the latter should prevail. The Salvadorian Law prohibiting abortion in all circumstances clearly violates both El Salvador’s domestic and international obligations to protect women’s right to life. It is time for El Salvador to pay close attention to article 144 of its own Constitution and meet its international legal obligations.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.