Right or crime? Constitutional Court accepts lawsuit to eliminate abortion from the Colombian Penal Code

The Causa Justa movement, which brings together 91 organizations and 134 activists – among them Women’s Link Worldwide, La Mesa por la Vida y la Salud de Mujeres, the Center for Reproductive and Catholic Rights for the Right to Decide – who work for the defending the rights of women in the country, presented a lawsuit before the Constitutional Court that seeks to eliminate article 122 of the Penal Code, which criminalizes abortion, so that women are not persecuted with penalties, which can go from one to four years in prison.

The magistrate Antonio José Lizarazo Ocampo will be in charge of preparing the presentation that will be presented before the Plenary Chamber of the high court.

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The path of decriminalization of abortion in Colombia began 14 years ago, when the Constitutional Court accepted a lawsuit against the crime of abortion so that in Colombia the voluntary interruption of pregnancy (IVE) would not be criminalized in three causes: in case of risk to the life or health of the woman, malformation of the fetus incompatible with life outside the uterus or in the event of rape or incest, which was enshrined in ruling C-355 of 2006.

However, the spokespersons of the Causa Justa movement assured that although in those cases the voluntary interruption of pregnancy -IVE- evolved to become a fundamental right, there are still obstacles and barriers to guarantee it, and the first of them is that abortion for Outside of those three exceptions, it is still a crime.

For this reason, the movement asked the Constitutional Court to declare article 122 of the Penal Code unconstitutional, which establishes abortion as a crime, “since it is inefficient, unfair to women and violates fundamental rights such as health, equality , freedom and above all, because their existence ignores the citizenship of the women who inhabit the Colombian territory, “said Ana Cristina González, co-founder of La Mesa por la Vida y la Salud de las Mujeres.

The penalty is the main barrier from which the others emerge. “Women in Colombia continue to face the risk of criminal prosecution, going to jail, or being subjected to discrimination and stigma when seeking to access the service safely, largely due to the fact that abortion continues to exist as a crime in the Penal Code ”.

According to data from the Report on the judicialization of abortion in Colombia of the Office of the Attorney General of the Nation (analysis of the cases between 1998 and 2019), 5,833 complaints of abortion crimes in the country reached the judicial body. Of these, 1,365 cases (23.4 percent) are active, while 4,468 (76.69%) are inactive.

Of the cases without legal proceedings, the majority (75%) is due to the fact that the complaints were filed or precluded because there was no criminal merit to continue with the process. And of the few active cases, most are in incipient stages, with 96 percent being investigated and 0.7 percent on trial.

Furthermore, 97% of the women reported for abortion lived in rural areas, and 30% were victims of domestic violence, sexual violence or personal injury.

It is estimated that in the country, due to structural access barriers, only between 1% and 9% of abortions are performed within the health system, concentrated in the main cities. This means that the majority of women resort to clandestine abortions that endanger their health, their lives and their dignity.

Regarding the role of the Prosecutor’s Office investigating abortions before and after the Court’s ruling 14 years ago, the accusing body assures that 472 sentences are registered in its system, of which 4.23% were acquittals and 55.93%, damning. The other 42.16 percent were penalized because the defendants were underage women.

In the same document, the Prosecutor’s Office assures that its figures show, on the one hand, that this crime is being penalized less and less since the 2006 ruling, and by the directive of the 2016 Prosecutor’s Office, which, following recommendations of the Advisory Commission of Criminal Policy, ordered to file and exclude the cases in which the Court decriminalized abortion, and to apply preferentially the principle of opportunity when it is not framed in those grounds. The directive also ordered to respect the legality and confidentiality of the evidence, so that it is not possible, for example, to violate medical secrecy to obtain evidence.

Likewise, according to the Prosecutor’s Office, the complaint for abortion is low. In 2019, 308 complaints were registered for this crime, the lowest report in the last 10 years.

Faced with these figures from the Prosecutor’s Office, Ardila sentenced:

“That in the penal code abortion continues to be a crime is the main barrier for women to access the three grounds. Women who live far from capital cities, and who do not have the resources for transportation or information, are not having access, thus their health and their lives continue to be put at risk due to unsafe abortions. In the same way, according to official figures, the women who are criminalized for abortion in Colombia are girls and young people, those who live in the countryside, the poorest, victims of domestic violence ”.

According to the lawyer, the fear of being reported leads women to go to unsafe places that put their health and life at risk.

On the other hand, that abortion is maintained as a crime in the Colombian Penal Code also affects the right to freedom of profession and trade of health providers; Those who, by fulfilling their duty to provide the IVE service, face social stigma in their professional fields, work overload and the risk of having legal proceedings against them.

“Studying a profession like medicine with the expectation of ensuring safe access to services is a difficult task when it comes to abortion. In our country, although this is allowed in three circumstances, the persistence of an abortion crime in the penal code makes the provision environment difficult if not impossible and often means that women but also providers are subject to of mistreatment and contempt for the stigma to which these services are subjected ”, said Ana Cristina González, doctor, co-founder of the Table for the Life and Health of Women.

And it is that, although health professionals have an ethical obligation to always act for the benefit of the women who consult them and to respect their autonomy, according to Laura Gil, professional of the Medical Group for the Right to Decide “the duality that the The existence of the crime, the professional stigma and the fear that its practice entails, reduces the right to abortion to be a privilege of those who have the fortune to consult whoever has sufficient disposition and clarity ”.

Although the percentage of the crime of abortion as stated in the Penal Code is not high, its unconstitutionality would represent an advance in social terms since the State would be obliged to provide access to safe abortions throughout the country and to respect autonomy. Women’s.