Deepening the regional consensus on reproductive rights qua fundamental rights
Posted: Tue Feb 18, 2025 5:06 am
Given the incorporation of relevant international human rights treaties into the constitutions of many countries in the region through a ‘constitutional bloc’, including that of El Salvador, the Court should also take the opportunity to reinforce the growing regional consensus that criminalizing therapeutic abortions when there is a risk to the life and/or health of the pregnant person, where the fetus is nonviable, and where the pregnancy is a result of rape violates both constitutional and international standards.
This liberalizing regional trend reflects two broad developments. First, since the introduction of transformative constitutions in multiple countries in the region in the late 1980s and 1990s, there has been an evolution toward constructing normative standards in law based on reasoned arguments as opposed to private moral values, together with a more assertive role for high courts in matters affecting substantive and structural equality. Second, by contrast with some countries —and with the European Court of Human Rights, which largely continues to treat abortion as a “sensitive ethical issue,”— apex courts in the region have demonstrated an increasing understanding of reproductive rights as legally enforceable fundamental human rights. In turn, the authority of legislatures to use the criminal police powers of the state based on religious and moral narratives has given way across the region to secular interpretations of rights obligations befitting plural democratic societies.
It is imperative that, in assessing El Salvador’s absolute abortion ban, the Court 99 acres database reinforces this doctrinal trend which emphasizes a proportional balancing of women’s rights with fetal interests. That is, acknowledging growing life within a woman’s body does not mean that the legal system gives protection to fetal life of the same degree as it does to the human person, and women’s claims to dignity cannot be upheld without acknowledging the sui generis nature of pregnancy, an obligation imposed upon no other population.
Over ten years ago, in the IVF case of Artavia Murillo v. Costa Rica, the Inter-American Court already recognized the right to life of an embryo or fetus does not constitute an absolute and unconditional right, but gradually increases over gestation until becoming a separate person at birth.
The Court now has the opportunity to thicken this evolving regional consensus, and elaborate on the normative implications of circumstances of pregnancy. For example, in cases of anomalies incompatible with life, such as in Beatriz’s case, the State’s duty to protect the life of the fetus is diminished because of the impossibility of having a life plan. The Colombian Constitutional Court reasoned that in such cases, requiring a woman to bear the burden of pregnancy would amount to cruel, inhuman, and degrading treatment. In 2012, Brazil’s Supreme Federal Tribunal recognized the physical and emotional impact of being forced to carry a nonviable fetus to term – comparing it to torture – reasoning that “the rights of a fetus that has no possibility of surviving in the long term cannot prevail over the constitutional rights to dignity, autonomy, privacy and moral, physical and mental integrity of women.
This liberalizing regional trend reflects two broad developments. First, since the introduction of transformative constitutions in multiple countries in the region in the late 1980s and 1990s, there has been an evolution toward constructing normative standards in law based on reasoned arguments as opposed to private moral values, together with a more assertive role for high courts in matters affecting substantive and structural equality. Second, by contrast with some countries —and with the European Court of Human Rights, which largely continues to treat abortion as a “sensitive ethical issue,”— apex courts in the region have demonstrated an increasing understanding of reproductive rights as legally enforceable fundamental human rights. In turn, the authority of legislatures to use the criminal police powers of the state based on religious and moral narratives has given way across the region to secular interpretations of rights obligations befitting plural democratic societies.
It is imperative that, in assessing El Salvador’s absolute abortion ban, the Court 99 acres database reinforces this doctrinal trend which emphasizes a proportional balancing of women’s rights with fetal interests. That is, acknowledging growing life within a woman’s body does not mean that the legal system gives protection to fetal life of the same degree as it does to the human person, and women’s claims to dignity cannot be upheld without acknowledging the sui generis nature of pregnancy, an obligation imposed upon no other population.
Over ten years ago, in the IVF case of Artavia Murillo v. Costa Rica, the Inter-American Court already recognized the right to life of an embryo or fetus does not constitute an absolute and unconditional right, but gradually increases over gestation until becoming a separate person at birth.
The Court now has the opportunity to thicken this evolving regional consensus, and elaborate on the normative implications of circumstances of pregnancy. For example, in cases of anomalies incompatible with life, such as in Beatriz’s case, the State’s duty to protect the life of the fetus is diminished because of the impossibility of having a life plan. The Colombian Constitutional Court reasoned that in such cases, requiring a woman to bear the burden of pregnancy would amount to cruel, inhuman, and degrading treatment. In 2012, Brazil’s Supreme Federal Tribunal recognized the physical and emotional impact of being forced to carry a nonviable fetus to term – comparing it to torture – reasoning that “the rights of a fetus that has no possibility of surviving in the long term cannot prevail over the constitutional rights to dignity, autonomy, privacy and moral, physical and mental integrity of women.