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For the Catholic Church, the right to voluntary interruption of pregnancy does not exist. For the Ministry of Health -in a concept signed by one of its officials and sent to the high court-, although this right is recognized in the three cases allowed since 2006, extending this guarantee beyond these causes implies allowing the “irresponsibility” of women.
These two statements, which are part of the concepts that the Episcopal Conferences and an official of the Ministry of Health sent to the Constitutional Court in the middle of a lawsuit from the Just Cause movement, They go against the jurisprudence of the high court.
In the case of what the Church has said, in different rulings the Court has referred to the voluntary interruption of pregnancy as a fundamental right in the three permitted grounds.
(Read also: Supersalud has issued 4 sanctions for denying abortion services)
And in the case of what is sustained by the Ministry of Health, in the document signed by the lawyer of that entity Joaquín Elías Cano Vallejo, the high court has issued rulings in which it has prevented authorities from making these types of statements to question with moralistic arguments the decisions of women to abort.
The concept was so controversial that the same Ministry of Health issued this Tuesday a statement in which he disavowed that document, said he would present another, and he pointed out that what had been said there corresponded to personal positions of the official Cano Vallejo.
But why are both the position of the Episcopal Conference and the one sent by the Ministry of Health so controversial?
(You may be interested in: ‘Debate on the criminalization of abortion must take place in Congress’).
The right to abortion in the three permitted cases does exist
The Episcopal Conference, representing the Catholic Church, opposed the Just Cause lawsuit, stating that the right to life must be protected from conception until death.
To expand on that argument, the Catholic Church makes statements that go against what was said by the Constitutional Court, unaware that the first ruling in which the right to voluntary interruption of pregnancy (IVE) was recognized was in 2006, when the three causes were allowed: risk to life or health to the mother, malformation of the fetus or rape.
Since then there have been at least six sentences (one from 2010, 2011, 2012, 2015, 2016 and 2018) that have categorized the IVE as an autonomous fundamental right.
(Read also: Government opposes lawsuit that asks to eliminate the crime of abortion)
The most recent, that of 2018, ensures for example that The fundamental right to IVE protects the autonomy and freedom of decision of women that she is pregnant and meets one or more of the grounds allowed by the high court. Being “fundamental”, affirms the Court, this right -which is linked to reproductive rights- is mandatory for compliance and realization by the State.
“From the partial decriminalization of the IVE and its categorization as a fundamental right, the review chambers of this Corporation have been deciding its content, as superior guarantee, in harmony with the provisions of ruling C-355 of 2006” the high court said in the 2018 ruling.
(We invite you to read: Human Rights Watch asks the Court to decriminalize abortion in Colombia)
Despite all this jurisprudence, the Catholic Church assures in its concept sent to the Court that the fundamental right to IVE does not exist, and says that in the 2006 ruling in which abortion was partially decriminalized, as well as in 2018 in which the high court refused to put a limit of weeks to that practice, what was said by the Pact of San José was not taken into account, which speaks of the right to life from conception, nor was the will of Congress taken into account.
Although the Court has been repeating it in its decisions for 14 years, the Episcopal Conference assures that “there is not a single provision in the Political Constitution that allows to conclude that such a fundamental right to abortion exists, “for which it considers that since there is no right, there is also no breach of that guarantee by the State, denying the barriers that the Constitutional Court itself has indicated in its judicial decisions, such as the one of 2018 where he said that these obstacles are a form of “violence against women.”
In the past, when evaluating guardianships for erroneous information about the right to IVE, the Constitutional Court has issued scolding (although in any case they have been against State institutions), for pronouncements of this type. For example, 10 years ago the Constitutional Court scolded the then Attorney General Alejandro Ordóñez, today ambassador to the OAS, for refusing to comply with orders from the high court by not implementing a chair on the right to abortion and women’s sexual rights.
(Read also: The figures that the Prosecutor’s Office gave the Court about abortion as a crime)
And in 2012 the same Court again scold Ordóñez, when solving a guardianship of 1,280 women and ordered him to retract for delivering misrepresented information or inaccurate on the reproductive rights of women in the country, and abortion.
Among the erroneous information that the Ordóñez Prosecutor’s Office released at the time was the statement that the 2006 ruling, which partially decriminalized abortion on three grounds,
The debt of regulation of the Minsalud and the affirmations about the “irresponsibility” of women
Although two years ago The Constitutional Court ordered the Ministry of Health to issue a regulation to guarantee access to the voluntary interruption of pregnancy –since the judicial corporation recognized that there are systematic barriers that women suffer to access this procedure, that portfolio has not issued such regulations.
In October last year, the Ministry issued a draft of what that regulation would be, but then asked the Court for more time to pronounce itself, a deadline that expired in May of this year without this document being known until now. In fact, upon admitting to studying the Just Cause claim, the Constitutional Court asked the Ministry 18 technical questions and asked the Ministry to explain whether it had already complied with the orders it gave it on the regulation of the IVE, ratified in two rulings: one from 2009 and another from 2018.
(Read also: The 162 Court questions, when admitting lawsuit against the crime of abortion)
The Ministry of Health has not yet responded to the Court with its technical arguments on abortion and the questions the high court asked it. Instead, what he had sent was an opinion of the official Joaquín Elías Cano Vallejo in which he asked to reject the Just Cause demand.
In this regard, which was disqualified by the Ministry of Health on Tuesday, ensures that the demand of this movement, more than the decriminalization of abortion, wants “to allow the use of abortion without any limit (…) allowing the woman, in the absence of an effective conscience and in the face of the irresponsibility of both the woman and the man at the time of having sex and prior to it, “may terminate the pregnancy.
According to that concept of the Ministry, which was later discredited, the couple should “rather be concerned with applying the many policies and methods of contraception or family planning, and not converting abortion as another mechanism for that planning. ”
It also states that abortion, when requested beyond the three permitted grounds, means “sacrificing a life, that of the baby, to correct a mistake made by two adults when acting irresponsibly.”
It is sacrificing a life, that of the baby, to correct a mistake made by two adults when acting irresponsibly
And he adds that the ultimate goal of the lawsuit is “to give a free pass for women who
lack of discipline, care, prevention or an adequate application of the
existing methods of family planning or contraception, can begin to remedy said errors or oversights, when this must be foreseen before, not after the act “.
However, these positions in which Cano, on behalf of the Ministry of Health, questions the “irresponsibility” and the “lack of awareness” of women they have not been allowed by the Constitutional Court. One of the most recent decisions in which he assured that these arguments cannot be part of the debate was given when studying the order that a judge had given to investigate a minor for trying to abort.
By certifying copies for the young woman to be criminally investigated, the judge said that she, “being the recipient of reproductive rights, has the to make free and informed decisions about procreation, a guarantee she had for the moment of having sexual relations with her partner and getting pregnant ”. The judge also assured that the pregnancy was “the consequence of not using contraceptive methods in order to avoid reproduction.”
(Read the context: Grave court order to investigate a minor for the crime of abortion)
In this case, the Court not only ordered the overturning of the decision that had ordered the initiation of a criminal proceeding against the young woman, but also recalled that the authorities must be responsible in these types of situations since it is “unreasonable to reproach a minor for the consequences of a lack of care and planning in their sexual relations”. He also said that there is a “deficit in the implementation and dissemination of sexual education programs”, which is why it may be unreasonable and disproportionate to make this type of moral judgment in the face of actions that lead a woman to become pregnant.
Another point in which the failed concept of the Ministry of Health went against what was said by the same jurisprudence is in which raises questions about what life is worth more or less, and it ensures that this assessment is the one at stake in this new lawsuit, stating that what is being sought is for the Court to say that the life of the mother matters or is worth more than that of the one to be born.
But this dichotomy raised by the Minsalud official goes against the pronouncements that the Constitutional Court itself has given, such as ruling C-237 of 2016, in which recalled that the legal existence of people occurs with birth, moment from which it can be considered an effective subject of rights and, therefore, of the fundamental right to life.
(Don’t stop reading: International entities and Bogotá mayor’s office ask to decriminalize abortion)
This does not imply that the unborn does not have any protection, but that according to the high court, a differentiation must be made between life as a value or a constitutionally protected good, available to the unborn, and life as a fundamental right, which it is available at birth.
The jurisprudence of the Court, and it recalls it in a 2018 ruling, has established that the embryo does not have the category of human person or holder of the right to life, rather it is a “higher good object of protection”.
Those statements of the Court, by putting the life of the mother on a different plane compared to the life of the one who is to be born, are omitted in the concept that the Ministry of Health had sent when ensuring, for example, that authorizing abortion under the conditions in which the lawsuit requests would imply legalizing the “violation of what is indeed a fundamental right, such as the right to life, by placing in the hands exclusively of women, preventing the birth of a person belonging to a certain group, that is, the family of the mother or father, or both, a fact that would constitute a violation of the Convention International for the Prevention and Punishment of the Crime of Genocide “.
On the other hand, ignoring the same barriers that the Constitutional Court has exposed to it in several rulings – such as the one that ordered it to regulate the IVE – the Ministry assured in this concept that there is no inequality between men and women regarding their right to health .
JUSTICE DRAFTING
Twitter: @JusticiaET
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