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Because of the opinions it divides, because of the rights that are at stake, abortion is a key issue for the country and the world. Now, with Argentina, there are at least 67 countries that have the most liberal standards and they allow this practice at the request of the woman, mainly in the first weeks of pregnancy, and then endorse it under certain grounds.
However, in the case of Colombia, despite the multiple calls that the Constitutional Court has done to it to pronounce and regulate this service, Congress has remained in omission in the face of this task, and the regulations and general guidelines that have been given on the subject they have come from the jurisprudence of that high court, not from the legislators.
Unlike Argentina, where – after years of struggle by women’s organizations – the Senate approved the abortion law at dawn this Wednesday that allows this practice in all cases up to the first 14 weeks, and then continue with a system of causes, in Colombia Congress has never legislated on this matter.
In fact, according to the records of the Constitutional Court itself, although Congress has processed at least 33 bills against abortion —Some of them protecting women’s rights, others totally decriminalizing it, and others seeking to protect the rights of the unborn — none of these initiatives has finished its course and all have been shelved or withdrawn.
(Read context: All 33 times Congress has failed to legislate on abortion.)
In the middle of that panorama, in Colombia abortion was considered a crime in the Penal Code of 2000, that in its article 122 establishes that the woman who causes her abortion or allows another to cause it may receive penalties of up to four years in prison. The person who, with the woman’s consent, performs the abortion is subject to the same penalty. For this crime, since 2006 the Attorney General’s Office has processed 5,646 legal proceedings and has obtained 259 convictions.
That rule remains in force today, but with a fundamental change that was made in 2006, when the Constitutional Court studied a lawsuit against that article of the Penal Code. That year, the high court established that abortion is not considered a crime when it is carried out in three circumstances: when the pregnancy is a risk to the life or the physical or mental health of the mother, when there is a malformation of the fetus incompatible with life and when the pregnancy is the product of rape. In the case of Argentina, before the abortion law approved this Wednesday, the voluntary interruption of pregnancy was allowed due to health risk or rape.
Since 2006, then, in Colombia a fundamental right to voluntary interruption of pregnancy (IVE) has been recognized in the three cases allowed by the Court.
(We invite you to read: Decriminalize abortion in Colombia? Arguments for and against).
However, although this progress has been made in the protection of women’s rights, and although 14 years have passed since the partial decriminalization, Barriers to access abortion in Colombia in permitted cases persist And this is the reason why the Constitutional Court has had to continue ruling through decisions of guardianship (only between January of last year and March of this year, six guardianships were filed requesting this right) and through decisions on claims .
Since 1992, the Penal Code, which is the norm that includes all the penalties in the country for committing different crimes, has been sued 386 times. Of those lawsuits, according to the records of the Constitutional Court, At least 11 of them have been against article 122 of that Code, which is the one that criminalizes abortion.
(Also read: The resources with which the lawyer has a frozen claim on abortion).
Most of these lawsuits have asked to eliminate the crime of abortion and, according to the Constitutional Court, currently in that high court there are four of these demands: two of them are in the office of the assistant magistrate Richard Ramírez and will pass into the hands of the new titular magistrate Paola Meneses; another is in the office of magistrate Alberto Rojas Ríos, and the fourth, in the office of Antonio José Lizarazo, which is that of the Causa Justa movement and the one that has convened the largest debate that has taken place in the high court on the matter in the last times.
(You may be interested: Do Church and Healthcare Concepts on abortion contradict the Court?).
The Just Cause demand ensures that the crime of abortion is the main barrier to guarantee the right to voluntary interruption of pregnancy allowed since 2006 in all three cases. But also, according to their lawsuit, this penalty violates health rights – because although it does not prevent abortions from being performed, it obliges
women to do them in unsafe and clandestine conditions – as well as
guarantees of autonomy and equality, since it does not allow women to make their decisions, and ends up harming mainly the most vulnerable women
—Poor and migrant girls and women — who have the most obstacles to access an abortion, and who in turn are the most criminally persecuted.
(You may be interested: International entities and the Bogotá mayor’s office ask to decriminalize abortion).
Those Lawsuits of abortion will be precisely one of the key issues that the Constitutional Court will have to face in 2021, when you will have to decide whether to decriminalize abortion entirely or to keep it as is.
For the discussion raised by Causa Justa, to the high court hundreds of concepts and opinions have arrived that have given elements to the corporation from one side or the other: most of the technical concepts —that come from academia, international organizations and institutions that know about the subject— they have been in favor of total decriminalization, or at least in the first weeks of gestation.
Others like the same Government and the Attorney General’s Office, They have asked to maintain the three grounds, but not to go any further, as they consider that this matter is a matter for the Congress, despite the multiple omissions of the Legislature by not ruling on the issue in 20 years. And other positions have asked the Court eliminate even abortion under three grounds and ban it completely.
(Also read: ‘Debate on the criminalization of abortion must take place in Congress’).
However, in different rulings the Constitutional Court has said that The regulations that Congress and the Government must carry out on the matter cannot be reversed In contrast to what the jurisprudence has already recognized —that is, they could not eliminate the three causes allowed since 2006 to interrupt the pregnancy—, but they would have to advance in the protection of rights.
This was established, for example, in a 2018 ruling in which the Court it refused to put a limit of weeks of gestation to abortion in the three cases allowed, considering that this could be a new barrier to abortion guaranteed in those cases.
Precisely, in that decision, the Court pointed out that the multiple barriers that have remained for partially permitted abortion since 2006 constitute a form of violence against women. That is why he ordered Congress, once again, to “regulate the matter, advancing in the protection of the fundamental rights of women and seeking to eliminate the still existing barriers to access to IVE”, without this having to date happened.
It also ordered the Government, specifically the Ministry of Health, issue a regulation for all EPS in the country, listing the rules that the high court has established to comply with the fundamental right to voluntary interruption of pregnancy in the three permitted cases, and provide the penalties that must be applicable for breaching these guidelines. This is because there are not many who are penalized for breaching their duty. As the Superintendency of Health told the Court, in 14 years it has only issued four sanctions to three EPS —That add up to a total of 629 million— for failing to comply with obligations and duties regarding permitted abortion services. This, despite the fact that this year alone it has received 57 complaints related to failures in the provision of this service.
Although at the end of last year, the Ministry of Health had published a draft of this regulation that included, for example, in the causal health abortion due to serious stress and socioeconomic conditions, this regulation has not yet been issued. The ministry ran out of deadline in May to issue that regulation, but recently that ministry told the Court that due to the suspension of terms that occurred this year in judicial processes – in the face of the coronavirus pandemic – the regulation has not yet been issued. and “is running”.
(Read also: After controversy, Minsalud delivers a new concept on abortion to the Court).
So things, before a Congress that has not legislated on the subject, and a Government that is still in default of issuing the regulation, All eyes in Colombia are on the Constitutional Court, which next year will have to decide whether to leave everything as it is and maintain the three grounds in which abortion is not a crime, or if it goes further and decriminalizes it.
Although according to high court sources, there are at least four magistrates who would agree to stop prosecuting women who decide to have an abortion for more reasons than their will, it takes at least five votes for that position to be consolidated, and so far the three magistrates in the judicial body – who will be four when Paola Meneses arrives – have not shown determined positions towards a complete decriminalization. In fact, one of them, Cristina Pardo, considers that the voluntary interruption of pregnancy in three cases should never have been allowed.
JUSTICE DRAFTING
Twitter: JusticiaET
