Abstract

In a world marked by intense political and legal polarisation, women’s reproductive rights remain a contentious issue, exemplified by two pivotal cases: Roe v. Wade and Beatriz v. El Salvador. The 2022 reversal of Roe v. Wade, a landmark decision legalising abortion in the US, threatens to strip women of their reproductive autonomy, potentially pushing many to seek unsafe abortions. This move not only endangers women's health but also compromises the principles of gender equality and individual freedom. Concurrently, the Beatriz v. El Salvador case underscores the perils of outright abortion criminalisation, with consequences gravely felt by marginalised communities, highlighting the intersection of race, poverty and education in accessing reproductive healthcare. The case accentuates the need for international human rights standards to shape national legislation. Both cases emphasise the necessity of an intersectional perspective in understanding reproductive rights, underlining the varied challenges faced due to overlapping societal oppressions. The journey for reproductive justice transcends merely access to abortion – it intertwines with broader socio-economic and cultural challenges. These cases illuminate the potential of the judiciary in effecting societal change, urging all sectors to vigilantly safeguard women’s rights against regressive trends.

Introduction

Women’s reproductive rights have always been a disputed and controversial theme. However, recent developments have shown that they are more contested than ever before in our highly politically and legally polarised world. Two critical cases demonstrate how this human rights subject is currently a hot topic and exemplifies a trend in an erosion of women’s rights.

The overturn of Roe v. Wade reignited the debate on abortion in the world, anticipating a possible moralist and conservative trend that, similarly to what happened in the 1970s when it was first brought before the US Supreme Court but in the opposite direction, will reverberate in other countries - now, implying a broader restriction of women’s human rights. The Beatriz v. El Salvador case highlights how the issue surrounding the legal prohibition of abortion leads it to be practised clandestinely and in an unsafe manner and/or at high costs. The core of the problem lies in the fact that prohibition mainly affects and controls the bodies of poor, Black, Latino women often with less access to education and more unfavourable living conditions, further increasing social inequality.

An intersectional view of the controversy is therefore essential to analyse these factors in a way that recognises abortion not as a crime, but as part of the universal human right to health and life. This approach also affirms the complexities that arise when multiple factors of marginalisation impact women’s access to healthcare and reproductive rights.

Roe v. Wade: A Turning Point in American Reproductive Rights

Roe v. Wade stands as one of the most monumental U.S. Supreme Court decisions, reshaping the discourse on reproductive rights. The case was brought by Norma McCorvey, known legally under the pseudonym ‘Jane Roe’. In 1969, McCorvey, already a mother to two, became pregnant once more and sought to terminate her pregnancy. Texas, her home state, prohibited abortions except when the mother's life was at risk. Challenging this, McCorvey initiated a lawsuit against Henry Wade, Dallas County's district attorney (Bartlett and Rhode, 2016).

In its landmark decision on January 22, 1973, the Court, with a 7-2 majority, ruled that the Constitution protected a woman’s right to an abortion under the umbrella of the right to privacy (Joffe, 2013), as delineated by the Due Process Clause of the Fourteenth Amendment. However, it emphasised that this right was not unfettered. States could intervene and regulate abortion post-foetal viability; the juncture when a foetus might survive outside the womb. Still, this pivotal ruling not only invalidated many restrictive abortion laws nationwide but also championed a woman's autonomy in reproductive decisions, marking a significant triumph for women's rights and reproductive health advocates.

The ramifications of Roe v. Wade were profound. While it empowered countless women to be able to terminate pregnancies legally and safely, thus improving maternal health outcomes, it also kindled intense debate. The decision has been a focal point of contention, with anti-abortion factions persistently lobbying against it, leading to a mosaic of subsequent abortion regulations by the state. This patchwork became even more pronounced in 2022 when the Supreme Court, in the case of Dobbs v. Jackson Women's Health Organization, overturned Roe v. Wade, pushing the authority over abortion rights back to individual states. This has resulted in highly polarised access, with some regions upholding the right and others imposing stringent restrictions or outright bans. As the future unfolds, the contention surrounding abortion rights remains unabated, with both sides staunch in their advocacy and opposition, indicating that this issue will continue to be a significant facet of American social and legal debates.

The Overturning of Roe v. Wade

On the 24th of June of 2022, The United States overturned the landmark 1973 case of Roe v. Wade, which legalised abortion in the US, raising significant concerns and warranting a critical examination of its potential consequences. Such a reversal has far-reaching implications for women’s reproductive rights and bodily autonomy.

The overturning of Roe v. Wade effectively hands the power to regulate abortion back to individual states, leading to a patchwork of varying laws and restrictions across the country. This disproportionately impacts marginalised communities, who may face increased limited access to reproductive healthcare services due to geographic, economic or social barriers (Lazzarini, 2022). In addition, women’s autonomy is undermined as their ability to make decisions about their own bodies and futures is eroded.

Additionally, the overturning of Roe v. Wade does not eliminate the demand for abortion; rather, it pushes many women towards unsafe and illegal procedures, risking their health and lives. History has shown that restricting access to abortion does not reduce the occurrence of abortions (Johnson, 2022), but instead drives them underground, perpetuating a cycle of unsafe practices. Moreover, it reflects a broader erosion of the principles of gender equality and bodily autonomy (Coen-Sanchez et al., 2022; Coomaraswamy 2017). It sends a troubling message that women’s rights to make choices about their own reproductive health are not considered fundamental and deserving of protection.

The Roe v. Wade Reversal: Implications of a Shifted Supreme Court and the Road Ahead

A primary catalyst behind this historic reversal was the transformation in the Supreme Court's composition. President Trump's appointment of three conservative justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – decisively tilted the balance of the Court toward a more conservative stance. All three, known for their scepticism towards abortion rights, played instrumental roles in this shift. Beyond individual justices, the broader legal context around abortion evolved dramatically. Numerous states had enacted laws that significantly curtailed abortion access. Challenges to these laws escalated to the Supreme Court and many found validation, setting the stage for Dobbs v. Jackson Women's Health Organization to question the very constitutional basis of a right to abortion.

The ramifications of overturning Roe v. Wade are multi-faceted and wide-reaching. Most immediately, it paves the way for many states to either ban or heavily restrict abortions. Such constraints are expected to disproportionately burden low-income women and women of colour, intensifying the socioeconomic inequalities in healthcare access. The political reverberations are this are equally significant (Almeler and Waggoner, 2013). The decision is anticipated to be a pivotal issue in the 2024 presidential race, with both pro-choice and pro-life factions being galvanised by the ruling.

Peering into the future, the composition of the Supreme Court remains a focal concern. If subsequent presidents, particularly those from the Republican party, continue the trend of nominating conservative justices, the anti-abortion stance of the Court may solidify further. This could render any attempt to overturn the Dobbs v. Jackson Women's Health Organization decision increasingly challenging.

Despite this setback, the battle over reproductive rights is far from concluded. A robust network of advocates and organisations remains steadfast in their commitment to securing safe and legal abortion care for all women (Joffe 2013), emphasising that while the terrain may have changed, the struggle endures.

Reproductive Rights in Latin America: An Evolving Landscape

Reproductive rights in Latin America present a complex and diverse panorama, marked by a mixture of significant progress in some countries and persistent restrictions in others. Historically rooted in conservative Catholic traditions, the landscape is changing, albeit at varying paces across the region.

A testament to relentless advocacy and activism, some nations in Latin America have made remarkable strides towards liberalising reproductive rights (Casas-Becerra, 1997). Argentina, for instance, emerged as a beacon of change in 2020 by legalising abortion up to 14 weeks. In quick succession, Mexico's Supreme Court decriminalised abortion in 2021 (Padilla, 2022), and Colombia took the progressive step of allowing abortion up to 24 weeks under specific circumstances in 2022. These changes signify a shift in regional attitudes but also underscore that the countries enacting them remain exceptions rather than the rule.

While some countries are embracing change, many remain anchored in restrictive laws and policies. Nations like El Salvador, the Dominican Republic, Honduras and Nicaragua uphold total bans on abortion, without exceptions for rape or incest. Others, including Brazil (Joffe, 2016), Paraguay and Venezuela, restrict abortion to life-saving scenarios for the mother. The health implications of these stringent laws are profound, pushing women towards unsafe abortions that lead to both physical and psychological distress.

Beyond abortion, women in Latin America grapple with other reproductive rights challenges (Roa, 2015). Access to contraception and comprehensive sexual and reproductive health services is limited for many (Molyneux, 2001). Furthermore, gender-based violence remains an endemic issue, profoundly impacting women's reproductive health and autonomy.

The recent progressive steps in reproductive rights were largely driven by persistent grassroots activism and advocacy. While the region's interconnected social dynamics indicate that changes in one country might inspire others, overcoming deep-seated religious and cultural beliefs remains a challenge. The activism and awareness-raising efforts, that spurred change in nations like Argentina and Mexico (Menendez, 2006), must be intensified to ensure a more comprehensive approach to reproductive rights in the entire region.

In sum, the trajectory of reproductive rights in Latin America is multifaceted. While the recent progressive milestones offer hope, they starkly contrast with the ongoing restrictions in many nations. Recognising reproductive rights as fundamental human rights is imperative. To ensure every woman’s right to make choices about her body, concerted regional efforts, continuous advocacy and policy-making that prioritises women’s health and rights are essential.

Beatriz v. El Salvador

The Beatriz v. El Salvador case presents a significant challenge to the Inter-American Court of Human Rights (IACHR), exposing the complex dynamics at the intersection of human rights and reproductive justice. In summary, Beatriz (an alias used to protect her real name) became pregnant for the first time in July 2011 (Center for Reproductive Rights, 2013). However, her pregnancy was high-risk due to a series of diseases she had: systemic lupus erythematosus, lupus nephropathy and rheumatoid arthritis. She was hospitalised several times and experienced anaemia, exacerbation of lupus symptoms and pre-eclampsia. She almost died during labour, and her child had to stay in the hospital for over 30 days until being discharged.

Beatriz became pregnant a second time in February 2013, again a high-risk pregnancy, except one thing was different: on the 7th of March 2013, she received news that the foetus had anencephaly, a condition incompatible with life outside the womb. At the same time, she was also warned that continuing the pregnancy posed a risk to her own life. Even though abortion is illegal without any exception in El Salvador, she filed a request for an abortion due to severe risk to her life, initially recognised by the Constitutional Chamber. However, this was later reversed by the same Court because they considered that there was no “omissive conduct” on the part of the authorities that would endanger Beatriz’s rights to life and health. On the 3rd of June, she gave birth to the baby, who died 5 hours later. In 2017, after a car accident, she died partly due to the ongoing deterioration of her health conditions exacerbated by her pregnancies.

Faced with the denial that Beatriz’s request for an abortion was a clear violation of her human rights, civil society groups decided to bring the case to the IACHR (ANSIRH, 2023). They continue to call for justice in Beatriz’s memory and compensatory damages for her family. Additionally, they demand non-repetition measures such as a change in El Salvador’s Penal Code.

While it is pending judgment, the IACHR has a unique opportunity to affirm the principle of reproductive autonomy and recognise the right to access safe and legal abortion when a woman’s life is at risk. By failing to do so, the Court would miss a chance to set a precedent for safeguarding women’s rights in cases where pregnancy endangers their lives, ultimately perpetuating gender-based discrimination and infringing upon individual autonomy in a region where these issues are everyday occurrences.

The Beatriz case highlights the detrimental consequences of restrictive abortion laws on reproductive justice. El Salvador’s absolute criminalisation of abortion denies women the right to make decisions about their own bodies and endangers their health and lives. The court’s decision is an excellent opportunity to address the systemic injustices and social inequalities perpetuated by such laws, further marginalising vulnerable women and perpetuating a cycle of discrimination.

Moreover, the Beatriz case underscores the importance of international human rights standards in shaping domestic laws and policies. International bodies such as the IACHR (ANSIRH, 2023) must play a proactive role in upholding human rights and pressuring governments to reform laws restricting women’s access to safe and legal abortion, ensuring the protection of their fundamental rights.

Furthermore, the case brings to light the influence of cultural and societal factors in the denial of reproductive rights. El Salvador’s deeply rooted conservative values and strong ties to religious institutions have perpetuated a culture of stigmatisation and moral judgment surrounding abortion (Gomez, 2016). This cultural backdrop has hindered progress in recognising and respecting women’s autonomy and their right to make decisions about their own bodies.

The Beatriz case also sheds light on the importance of ensuring access to comprehensive healthcare services, including safe and legal abortion. Denying women access to the complete range of reproductive healthcare options compromises their overall well-being and autonomy. El Salvador’s Constitutional Chamber’s decision to deny Beatriz an abortion perpetuates unequal access to healthcare services and exacerbates existing disparities in health outcomes, particularly for marginalised communities.

It should be stressed that the Beatriz case prompts reflection on the role of legal frameworks and the potential for judicial activism in advancing reproductive justice. The court has the opportunity to interpret existing laws in a way that aligns with evolving societal values and international human rights standards. In addition, the IACHR has a chance proactively to shape legal frameworks to better protect women’s rights and promote social progress (Pizzarro, 2014).

Intersectionality and The Cases

What do both these cases have in common? First, they highlight how, even in 2023, we are still debating the recognition of a fundamental human right. More than the abortion issue itself, Roe v. Wade and Beatriz v. El Salvador show that reproductive rights emphasise the intersection of multiple factors of marginalisation. The struggle for reproductive rights has been a longstanding battle for women worldwide. However, when examining this issue through the lens of intersectionality,[1] it becomes evident that the fight for reproductive autonomy is far from uniform.

In the context of reproductive rights, intersecting identities produce a complex web of privilege and oppression. For instance, women of colour often face disproportionate barriers to reproductive healthcare due to systemic racism and economic disparities (Crenshaw, 1989). They are more likely to face inadequate healthcare facilities, lack of information and racial biases restricting their choices. Therefore, the fight for reproductive autonomy cannot be divorced from the broader struggle against social inequality.

Moreover, intersectionality introduces the reproductive justice concept, expanding the traditional reproductive rights framework (Smith, 2016). Reproductive justice stresses the need to consider not only the right to access contraception and safe abortions but also the broader socio-economic, cultural and environmental conditions necessary for individuals to make reproductive decisions free from coercion and discrimination. It acknowledges that marginalised communities encounter intersecting oppressions that limit their agency in reproductive matters. By adopting a reproductive justice framework, we can address the intersecting concerns of poverty, racism, ableism and other forms of discrimination that disproportionately impact marginalised individuals seeking reproductive healthcare.

The impact of intersectionality on reproductive rights is most palpable when examining access to reproductive healthcare. Privileged individuals often enjoy greater access to comprehensive reproductive healthcare, while marginalised groups[2] face significant barriers. For example, women from low-income backgrounds often struggle to access affordable contraception, prenatal care and adequate maternal healthcare. This inequality is compounded when considering the experiences of transgender and gender-nonconforming individuals, who face additional challenges such as discrimination, limited healthcare providers and inadequate reproductive healthcare options. Intersectionality illuminates these disparities, underlining the need for inclusive policies that address the unique needs of marginalised communities.

Intersectionality also plays a crucial role in legal battles surrounding reproductive rights. Court cases and legislation focusing solely on gender-based discrimination may inadvertently ignore the specific challenges individuals face at the intersections of multiple identities. For instance, laws restricting reproductive autonomy may disproportionately affect low-income women of colour or individuals with disabilities. In addition, intersectional perspectives provide a more comprehensive understanding of the diverse barriers faced by different communities (UN, 2022), urging lawmakers and activists to adopt an inclusive approach that upholds the rights of all individuals.

Looking Ahead: The Future of Reproductive Rights

The reproductive rights landscape is a complex tapestry woven with both progress and setbacks. We've seen commendable advancements: nations like Argentina, Mexico, Colombia and New Zealand have embraced changes, moving towards decriminalising or legalising abortion. Such milestones reflect the shifting global view on the importance of reproductive autonomy (Gargallo, 2014). Moreover, there's a growing global consciousness about the intertwined nature of reproductive rights, gender equality and social justice and ensuring reproductive rights are now, rightly, seen as a cornerstone for achieving societal equity.

Access to contraceptives and other related health services has broadened in many regions, empowering individuals with the choice and knowledge to manage their reproductive health. The tireless efforts of reproductive rights advocates have played a pivotal role (UN, 2022) in this progress, continually pushing for change and ensuring the cause remains at the forefront of societal discourse (Morgan, 2017).

However, the path hasn't been without hurdles. The recent US decision to revisit Roe v. Wade stands as a stark reminder that established rights are always at risk. This decision not only casts doubt domestically but sets a concerning global tone. The rising influence of anti-abortion groups and their expanding footprint globally challenges the strides made in reproductive rights (Reproductive Rights, 2023). While some nations move forward, many are still tethered to restrictive abortion laws that endanger women's health and their rights. Access remains a privilege, not a right, in many regions, highlighting the persistent disparities. Furthermore, the blight of gender-based violence continues (Luna, 2010), casting long, oppressive shadows on reproductive health and rights.

As we navigate this intricate journey, the need for advocacy is more significant than ever. To truly usher in an era where reproductive rights are a given, not a luxury, we must support organisations at the forefront of this battle, engage in political activism, enlighten ourselves and our communities and challenge deep-rooted norms and stereotypes perpetuating gender-based violence (Luna, 2010). Only by embracing these actions can we inch closer to a world where every individual enjoys unchallenged agency over their bodies and lives.

Conclusion

In sum, the fight for reproductive justice and fundamental human rights regarding abortion and comprehensive women’s healthcare is controversial in the political, legal and, more broadly, social arenas. Scepticism regarding the substantial effects of international human rights court judgments stems from concerns about the ability to enforce and effectively implement these judgments consistently and meaningfully across different countries and legal systems due to factors such as non-compliance by states, political resistance, resource constraints and cultural relativism.

Nevertheless,  Roe v. Wade and Beatriz v. El Salvador illustrate how the judicial system does have the power to make critical changes in society and how legal scholars can advance the human rights debate and contribute to societal change. Further, as both cases illustrate, the backlash against women’s rights is a current and dangerous trend that needs special attention from all sectors of society, especially the legal and social activism fields.

Footnotes

[1] Intersectionality is a concept that recognises and explores the interplay of social identities, such as race, gender, class, sexuality, dis/ability and others, and how they intersect to create situations of oppression or privilege. It understands that these social categories do not exist independently but interact and overlap, creating unique and complex experiences for individuals and groups with multiple marginalised identities. Its main goal is to create a comprehensive and inclusive approach to social justice. Intersectionality was first coined by legal scholar Kimberlé Crenshaw in 1989 in her groundbreaking article ‘Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’. Crenshaw underlined the shortcomings of mainstream feminist and civil rights frameworks, which did not adequately address the unique experiences of Black women who encountered discrimination at the intersection of multiple identities. Since then, intersectionality has gained prominence across various academic disciplines, activism and social justice movements. The ongoing scholarship and activism movement are also expanding the scope of intersectionality beyond the categories of gender and race, including other intersecting social identities and power dynamics that are current in social debate (such as LGBTQIA+, gender performance and identity, mental and physical dis/ability, nationality and language). Moreover, it has been applied to various contexts, such as law, sociology and political science, to assess the complex ways in which intersecting identities influence social, economic and political outcomes.

[2] Smith, C. M. (2016) ‘Beyond Pro-Choice versus Pro-Life: Women of Color and Reproductive Justice’, NWSA Journal, 17(1).

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Author Biography

Bernardo Carvalho de Mello is a PhD Researcher at Newcastle University, specialising in International Human Rights Law.

Ethics and Funding Statement

No ethical approval was required for this research and no funding is reported by the author.

How to cite this paper: Carvalho de Mello, B. (2024). A Journey from Roe v. Wade to Beatriz v. El Salvador: Chronicles of Reproductive Justice in the Americas. ‘Race’ and Socially Engaged Research Working Paper 2023: Contributions from inaugural conference held in York. Volume 1, pp. 34-47, https://sites.google.com/view/raceandsociallyengagedresearch/publications/working-paper/2024-volume-1