Reproductive Rights in Colombia: Expanding Legal Access to Abortion on the Basis of Human Rights
A pro-choice protest in Colombia. Image by Alberto Alonso.
In 2006, the Constitutional Court of Colombia heard case C-355/06, an appeal for legal protection brought by Monica del Pilar Roa López and a group of lawyers and social activists seeking the expansion of reproductive rights in Colombia. López, the project director of Women’s Link Worldwide, an NGO committed to using the law to advance the rights of women around the world, spearheaded the fight for reproductive rights in the country. At the time, abortion in Colombia was illegal, without any exceptions. The claimants based their argument on the rights promised to them in the 1991 Colombian Constitution and requested that the Court declare the current strict abortion restrictions unconstitutional. These rights included the basic principles of human dignity, autonomy, and equality; such principles are highlighted by international human rights doctrines such as the Universal Declaration of Human Rights.
First, the claimants argued that matters solely concerning a person must be decided only by him, her, or them. To take this right away from mothers would strip them of autonomy and dignity, especially if the fetus in question was conceived from criminal acts. The criminalization of a medical practice unique to women violates the right to equality and disregards the impacts that an unwanted pregnancy can have on the lives of young, low-income women. Additionally, based on a United Nations Human Rights Committee decision, not guaranteeing the possibility of a legal and safe abortion when there are serious fetal malformations is a violation of the mother’s right to be free from torture and cruel treatment.
Equitable and free access to safe abortion is a human right, as outlined in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.” Therefore, reproductive justice is a subject that falls within the realm of human rights. C-355/06 was the first judicial decision to rule on the constitutionality of abortion within a human rights framework. The Court’s ruling distinguished between the legal right to life and the constitutional value of life. This distinction means that the Court has the right to protect the constitutional value of prenatal life but can only do so in a manner that respects the human rights of the mother. The ruling of case C-355/06 allowed women in Colombia to seek legal abortions under three circumstances: if the continuation of the pregnancy was certified to constitute a danger to the life or health of the mother, if the fetus had serious malformations causing the life of the fetus to be inviable, or if the pregnancy was a result of criminal acts such as rape or incest.
Since Colombia’s movement toward reproductive rights from a human rights standpoint, there has been a clear international trend towards expanding legal access to abortion. Tysiąc v. Poland (2007), a case from the European Court of Human Rights, found that the applicant’s rights under Article 8 of the Universal Declaration of Human Rights had been violated. The applicant had experienced severe myopia during her two prior pregnancies but was refused a therapeutic abortion after a 5-minute consultation without any ophthalmologic consideration by a doctor at the state hospital. As a result, the applicant suffered an almost complete loss of eyesight. Such cases demonstrate that arguing for reproductive rights as human rights is an effective and efficient way to expand access to abortions. Additionally, general comments and recommendations released by the Committee on the Elimination of Discrimination Against Women, the Human Rights Committee, and the Committee on Economic, Social, and Cultural Rights have established a powerful precedent for using human rights to protect the reproductive rights of women around the world.
After C-355/06, the Colombian Ministry of Health issued new regulations specifying conditions for the implementation of lawful abortion by public and private healthcare service providers. These regulations included the adoption of the World Health Organization’s Safe Abortion: Technical and Policy Guidance for Health Systems. Additionally, abortion on the grounds allowed by the C-355/06 were incorporated as part of the services provided by the public health system in Colombia. Unfortunately, numerous issues persist, including a lack of information about the new legal framework, the use of collective or institutional conscientious objection by health care providers, the disregard of the autonomy of young girls to make decisions, and unjustified waiting periods that prevented women from obtaining abortions in a timely fashion. Women in Colombia continue to face structural roadblocks on their journeys to reproductive freedom, including the risk of criminal prosecution, jail time, and increased subjugation to discrimination.
It’s clear that only decriminalizing select cases where abortion is permitted is not an effective means to end the epidemic of unwanted pregnancies that result in unsafe and illegal abortions in Colombia. Prior to the 2006 ruling, 24 percent of all pregnancies in Colombia resulted in abortion and 26 percent were unwanted pregnancies. In 2008 alone, 400,400 induced abortions were performed in Colombia—only 322 were reported as legal procedures. An attempt to remedy the lasting negative impacts of Colombia’s widespread criminalization of abortion was shut down in March 2020, when the Constitutional Court declined to make any ruling in cases that permit abortion during the first months of pregnancy.
The Causa Justa movement, an organization that seeks to allow women to make autonomous decisions in a free and informed manner and recognize abortion as a true fundamental right, now leads the fight for the expansion of reproductive rights in Colombia and throughout South America. On September 16th, 2020, the Causa Justa movement, joined by 134 activists and 91 organizations, filed a joint lawsuit in the Constitutional Court of Colombia pushing to entirely declassify abortion as a crime in the Penal Code on the basis that the harsh regulation violates the fundamental rights of women. The claims include violation of the right to voluntary termination of pregnancy, violation of the right to health, violation of the right to freedom of profession or trade of health personnel, violation of the right to equality of migrant women in an irregular migratory situation, violation of the right to freedom of conscience and the principles of the secular state, and violation of various constitutional principles of criminal law. Causa Justa argues that since C-355/06, a large number of laws and decrees have changed the legal scenario surrounding abortion and the current charges are different than those examined by the Court in 2006.
Based on the precedent they set in 2006 with case 355/06, and numerous international rulings that have expanded access to reproductive rights on the basis of human rights, the Constitutional Court of Colombia should rule in favor of the expansion of reproductive rights and eliminate the crime of abortion as it is unfair to the most vulnerable women in Colombia. The Causa Justa group also hopes to ameliorate the situation in Colombia through legislative action. They seek to replace the criminal law surrounding abortion with better health policies that help prevent deaths and complications from unsafe abortions and unwanted pregnancies, including comprehensive sex education programs, information, access, and availability of contraceptive methods. When reproductive rights are restricted, as seen in Colombia, abortion rates don’t decrease; rather, safe abortion rates decrease, especially among uneducated, low-income women. By implementing these changes on a national level, both through the court system and the legislative process, the number of unsafe, illegal abortions taking place among women in Colombia will decrease across the board, leading to the critical destigmatization of abortion and other reproductive services. Wealthy or impoverished, educated or uneducated, women around the world must have rights to autonomy and human dignity.
Jesse Levine (BC ‘25) is a first-year student at Barnard College looking to study political science, human rights, and journalism.