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Colombia, as of February of this year, permits elective abortion up to the 24th week of pregnancy. The following article, produced by New Democracy Foundation1, explains how Colombia reached this point and what the true situation of abortion is in the country, and covers the background, content, and consequences of the tragic February 2022 decision to perpetuate abortion violence.
The Judge Above the Legislator
In Colombia there is not and never has been an abortion law. Although attempts have been made to pass one through the Congress of the Republic, the bills that have been presented have not had sufficient support. All decisions in favor of abortion have been made by the Constitutional Court based on two legal mechanisms: the public action of unconstitutionality and the action of guardianship. The first allows any Colombian citizen to demand judicial review of a law that they consider contrary to the Constitution and the second is a measure to protect fundamental rights in particular cases. Through these actions, lower court judges rule on these laws and the Constitutional Court then can select these decisions for review.2
When the Colombian Political Constitution of 1991 was issued, the Penal Code of 1980 was in force, in which article 343 penalized abortion with up to 3 years in prison.3 Taking advantage of the constitutional change, in 1994 a citizen filed a public action of unconstitutionality against the abortion criminal law. In short, the lawsuit pointed out that the unborn were not people. Under this assumption and based on freedom of worship, conscience, and the right not to be disturbed personally or in her family, the opinion stated that the decision to obtain an abortion belonged to the pregnant woman and could not be penalized.4
On that occasion, the Court did not agree with the plaintiff’s claims and declared the abortion criminal law was constitutional. The opinion held that the Constitution did protect the life of the unborn, not only because of what was established in its article, but also because of the contents of different international treaties, such as the Convention on the Rights of the Child or the American Convention on Human Rights. However, this decision did not close the door to abortion because the magistrates who years later came to the high court did not respect “res judicata”.
Indeed, in 2000 the legislature issued the new Penal Code with an identical abortion law, which once again penalized the practice with imprisonment between 1 and 3 years.5 However, in 2006 a new group of citizens led by the international organization Women’s Link Worldwide, went to court to attempt decriminalization again. The Court adjourned res judicata and decided to rule again on an already-resolved issue stating, on the one hand, that the 2004 law increased the criminal penalty6 and this meant that the text was not identical and, on the other, that due to the 20-year difference between the issuance of the first and second code, it was a “different criminal context.”
This time, the Court decided that abortion should be decriminalized in cases of “danger to the life or health of the woman, certified by a doctor, (…) serious malformation of the fetus that makes its life nonviable, certified by a doctor and (…) pregnancy resulting from conduct, duly reported, constituting carnal assault or a sexual act without consent, abusive or artificial insemination or non-consensual transfer of a fertilized ovum, or incest7”.
The Court developed that ruling (C-355 of 2006) with subsequent guardianship decisions, in which judges had decided abortion issues. In those decisions, the judiciary expanded abortion access, eliminated restrictions, and even sought to limit freedom of conscience. Although in principle these decisions should affect only the parties, the Court extended their impact to the entire population. These are some examples:
T-209 of 2008: Only the individual doctor can conscientiously object but has an obligation to refer the patient to another professional who performs the procedure.
T-946 of 2008: The only requirement for accessing abortion in cases of rape, incest, or non-consensual artificial insemination is to report the act. Any other requirement is an obstacle to the exercise of sexual and reproductive rights.
T-388 of 2009: The health exception for abortion not only refers to physical problems but also to psychological ones. The decision orders the implementation of educational campaigns on sexual and reproductive rights: the so-called “abortion cathedra”.
T-009 of 2009: A women’s autonomy right to abortion extends to 14-year-old girls, even when the parents oppose the decision.
T-585 of 2010: Abortion is considered a “fundamental right” within the framework of “sexual and reproductive rights”.
T-841 of 2011: A mental health risk is sufficient reason to perform a legal abortion. Health providers have a period of 5 days to perform the abortion after the patient’s request.
T-301 of 2016: The decision penalized a healthcare facility for not performing an abortion after the 22nd week of gestation. There is no gestational limit for the practice of abortion.
In a 2018 unification ruling (to unify the jurisprudence of guardianship rulings), the Court reaffirmed several of the aforementioned decisions, addressing the case of an abortion request for a baby that would have been born with disabilities such as blindness. In her dissenting opinion, the magistrate Cristina Pardo said that in the majority opinion, “it was decided to endorse the practice of discriminatory abortions and to ignore the constitutional recognition of the rights of people with disabilities8.”
This is how the abortion agenda in Colombia has advanced through the highest constitutional court – which initially recognized that the Colombian Constitution protected the unborn – and not through legislation. The strategy of the pro-abortion groups remains the same, as seen in the recent 2022 decision that this report will explain below.
2022: Elective Abortion up to 24 Weeks
The “Causa Justa” (“Just Cause”) collective, which brings together organizations such as the aforementioned Women’s Link Worldwide, filed a new lawsuit in September 2020 seeking the elimination of the Penal Code article that criminalizes abortion. At the same time, a similar lawsuit was filed by a citizen in a personal capacity. Due to the short time difference between the filing of each lawsuit, the Court decided not to consolidate them and to decide them separately.
Aware of res judicata doctrine, the plaintiffs filed a more robust lawsuit, with new charges and different legal reasoning, including the situation of Venezuelan migrants. In short, they considered that the national and international jurisprudential and regulatory advances were sufficient reason for the Court to rule again on the abortion issue. In regard to the merits of the claim, the plaintiffs used claims similar to those of the previous lawsuits, adding some such as the equality of Venezuelan migrant women9 and the freedom of conscience of abortion doctors.
Pro-abortion magistrates accepted the demands and presented papers that sought total liberalization. However, the process had many obstacles that delayed the decision. An example of this was the challenge against magistrate Alejandro Linares who, in an interview with a media outlet, advanced his position on the lawsuit while it was pending, for which he had to be removed from the discussion. It is worth saying that, in 2020, this magistrate had already presented a paper in favor of total abortion decriminalization, which was defeated in the midst of the controversy over the case of “JuanSe” that shocked the country, since it involved a baby aborted at seven months of gestation and whose father sought to save its life.
With Linares out of the discussion, the Court – made up of nine magistrates – was tied (4-4)10 against the decision to decriminalize abortion, which forced the appointment of a co-judge for each of the demands. In the case of the Just Cause lawsuit, the associate judge chosen at random (from a list of 18 associate judges previously selected for these cases) was Julio Andrés Ossa, who was only known to work with a few conservative judges.
Ossa, however, voted in favor of a new paper presented by Judge Antonio Lizarazo. It no longer sought total decriminalization but liberalization until week 24 of the pregnancy. Doing this maintained the late-term exceptions after this week and consolidated the majority opinion. With the favorable vote of the associate judge, Lizarazo’s paper was approved and became judgment C-055 of 2022.
In this ruling, the Court again decides to ignore the constitutional doctrine of res judicata, mainly arguing for a change in the regulatory context, especially in health matters.
Later, although this new ruling recognized the need to protect the life of the unborn, it nevertheless maintained that prohibiting the practice of abortion through criminal law was disproportionate and unjustifiably affected women’s rights.
Finally, in setting the 24-week limit, the opinion decided to use the criterion of autonomy or extrauterine viability of the fetus. Thus, it referred to the gestational week limits established in other countries, especially highlighting the United States rulings, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
Now, it should be noted some positive aspects of the C-055 ruling:
- The Court did not refer to the practice of abortion in the first 24 weeks as a fundamental right.
- The Court did not impose an obligation on the health system to perform abortions.
- The Court recognizes the need to protect the right to life of the unborn legally11 and this protection could include non-criminal limits before week 24 since the ruling does not establish prohibitions in this regard.
However, the health system ignores these aspects. Instead, healthcare providers perform abortions based on the guardianship decisions already indicated in the table.
The applications for annulment filed against the judgment are currently under review. And despite the different interveners alleging several legal grounds to request it, only two of these applications stand out for their solid arguments.
On the one hand, there is the claim that the Court ignored the constitutional doctrine of res judicata. It means the Court has insufficient reasons to affirm that a substantial change in the legal context has occurred, allowing them to rule again on a previously decided matter.12
On the other hand, there was arbitrary avoidance of a matter of constitutional relevance. It means the Court decided not to rule on a fundamental issue, namely, fetal pain during an abortion. Indeed, when the Court agreed to prohibit certain practices, such as fishing or sport hunting, the possibility of causing unjustified pain or mistreatment of a sentient being was decisive in making those legal decisions. Still, in the case of abortion, the Court did not take fetal pain into account.
Unfortunately, nullifying the abortion decision does not have a high probability of success, considering that the Court must resolve the application for nullity.
Other proposals have emerged, such as a referendum in which citizens decide the abortion issue. Indeed, more than 83% of Colombians rejected the Court’s decision, according to a survey published weeks after the ruling was issued.13 However, there is broad opposition from citizens; a referendum is not an easy path due to its formal requirements. The law requires approval by the Constitutional Court, and, as has already been stated, the Court considers the prohibition of abortion unconstitutional. So not even a referendum is an ideal way to restrict it.
In addition, there are currently more reasons to think that the referendum initiative will not succeed. The legislative and presidential elections led to a progressive government with consolidated majorities in Congress. In addition, the referendum also seeks the prohibition of practices such as euthanasia, which has more popular support, which makes the referendum approval even more difficult.
The following paragraphs will present some considerations on the current situation of abortion in Colombia and what may happen soon.
What Is the Status of Abortion in Colombia?
Abortion in Colombia has a wide margin to be practiced, not only due to liberalization in the first 24 weeks, but also due to the late-term exceptions for abortion. As already explained, through the guardianship rulings, the Constitutional Court extended the abortion exception from risk to the life of the mother to risk to mental health. According to the medical director of Profamilia (Colombian IPPF affiliate), “easy crying” is reason enough to perform a legal abortion.14
The possibility of limiting, regulating, or prohibiting the practice of abortion is currently not favorable for Colombia. Although there are still members of Congress and magistrates committed to defending the right to life, the truth is that they are far from forming a majority that could achieve significant changes. Reality shows that we must be patient and persevere to enact transformations in the three branches of government so that in the future we can think about the possibility of reforming abortion law.
Finally, Colombian civil society and Congress cannot lose sight of the current relevance of the Constitutional Court for making the most transcendental decisions for the country. Any law or any amendment to the Constitution will be subject to review by the Court and 5 magistrates are enough to prevent a favorable decision to life. Without a doubt, it is imperative to find a way for people who respect the Constitution and the international treaties that protect life from conception to reach these positions. In the next four years, four new magistrates will arrive at the Constitutional Court, which means that, from now on, the challenge is to fill these vacancies well.
Footnotes
1 A civil society organization focused on working with young people for the defense of life and freedom. It has participated in the public debate on abortion both in academic and social settings, as well as in spaces of deliberation and decision. www.nuevademocracia.co
2 Political Constitution of Colombia. Articles 86 and 241.
3 Decree 100 of 1980. Article 343: “The woman who causes her abortion or allows another to cause it, will receive a prison sentence between one to three years (…)” and “the same sanction will be subject to whomever, with the consent of the woman, performs the act provided for in the preceding paragraph.”
4 Constitutional Court, judgment C-133 of 1994. M.P. Antonio Barrera Carbonell. The plaintiff argued that “by guaranteeing freedom of conscience, the Constitution guarantees that it is a woman’s optional act to be able to determine if she voluntarily submits to an abortion, invoking for this the certainty that originates in the intimate reasons of her own conscience. It is the woman without a partner or a husband or the couple who is responsible for deciding and disposing of the product of conception until it becomes a person or until the gestation reaches its term.”
5 Law 599 of 2000. Article 122. “Abortion. The woman who causes her abortion or allows another to cause it, will incur in prison from one (1) to three (3) years (…) the same sanction will be subject to whomever, with the consent of the woman, performs the conduct provided for in the preceding paragraph”.
6 Law 890 of 2004.
7 C-355 of 2006. Available at: https://www.corteconstitucional.gov.co/relatoria/2006/c-355-06.htm
8 SU-096 of 2018. Available at https://www.corteconstitucional.gov.co/relatoria/2018/SU096-18.htm
10 Judges Alberto Rijas, Antonio José Lizarazo, Diana Fajardo and José Fernando Reyes were in favor of total decriminalization, while the magistrates Cristina Pardo, Jorge Enrique Ibáñez, Paola Andrea Meneses, and Gloria Stella Ortiz were inclined to maintain abortion criminalization under res judicata doctrine.
11 Constitutional Court, ruling C-055 of 2022. M.P. Antonio José Lizarazo and Alberto Rojas Rios.
12 On this point, you can consult the dissenting votes of judgment C-055 of 2022 presented by the magistrates Jorge Enrique Ibáñez and Gloria Stella Ortiz.
13 Invamer survey of March 2022. https://www.eltiempo.com/colombia/otras-ciudades/encuesta-invamer-aborto-hasta-24-semanas-rechazado-por-mayoria-655939
14 https://m.facebook.com/NDemocraciaCol/videos/630175807710251/
