(CNN Spanish) – The legislation on abortion in Colombia could change in the coming days depending on what the Constitutional Court decides on two cases regarding the total decriminalization of this practice.
In Colombia, the Penal Code considers abortion legal in three specific cases: rape or incest, fetal malformation that makes life unviable, or when the continuation of the pregnancy constitutes a danger to the life or health of the woman, certified by a doctor. But whoever performs an abortion – or whoever performs it – outside of these three scenarios, commits a crime.
This is stated in article 122 of the Colombian Penal Code: “The woman who causes her abortion or allows another to cause it, will incur in prison from sixteen (16) to fifty-four (54) months in prison.” And “whoever, with the consent of the woman, carries out the conduct provided for in the previous paragraph” shall be subject to the same sanction. “
“The voluntary interruption of pregnancy for the three causes described in ruling C-355 of 2006, is a fundamental right of women that must be guaranteed by the Social Security System in Health. It also belongs to the intimate or private sphere which obliges to protect the confidentiality of women who request it and not be subjected to re-victimization, discrimination, blame or stigma, “says the Colombian Ministry of Health.
It is expected that this week, before Friday the 19th, the Constitutional Court will conclude with a ruling the debate on the two demands that ask for the practice to be decriminalized and put the right to abortion in the foreground.
To be approved the decriminalization of abortion, the court needs a simple majority with the favorable vote of five of the nine magistrates.
The study on abortion in the Constitutional Court of Colombia
The two lawsuits that the high court is studying call for the decriminalization of abortion in all its forms.
One of these lawsuits was filed by the Just Cause Movement, which promotes the elimination of the crime of abortion from the Colombian Penal Code and which claims to be made up of more than 90 organizations and more than 150 key actors.
This movement seeks that “no woman goes to jail for deciding on her body; and so that health professionals can exercise their profession without criminalization or stigma.”
According to Just Cause, by ruling in favor of eliminating abortion as a crime, the Court would achieve recognition of the “freedom and autonomy of women to decide on their bodies and life projects, fundamental characteristics of full citizenship.”
The other lawsuit was filed by the lawyer Mateo Sánchez in 2020, in the midst of a social context in the country in which the total criminalization of abortion was being discussed – even eliminating the three causes – and bills in Congress for the same purpose. Sánchez said in an interview on journalist Claudia Palacios’ podcast last week.
“It seemed like a terrible setback to me that we reached a stage where (abortion) was completely penalized again,” Sánchez said. According to him, with the lawsuit he filed before the Court, he seeks to safeguard the rights that already exist on abortion “and perhaps something else,” he added.
A lawsuit against the three causes of abortion
In May 2019, the lawyer Natalia Bernal Cano, who rejects the decriminalization of abortion, filed a lawsuit of unconstitutionality against the law that enables abortion for three reasons.
The Constitutional Court of Colombia declared itself inhibited from giving a ruling on the merits of two lawsuits that she presented that asked to declare abortion illegal from the moment of conception
According to the plaintiff, who does not agree with the decriminalization of abortion, this practice “affects the dignity, psychological and physical integrity” of women who abort voluntarily, and also “endangers the conscience and mental health of doctors. who carry out the procedure “with the authorization of the States.
In addition, she says, “it threatens the life, dignity, privacy and integrity” of the unborn, the Constitutional Court reported in March 2020.
The Court rejected this lawsuit in March of last year and did not make a decision on the merits of the lawsuit filed by the lawyer Bernal Cano, since, as reported, “the plaintiff did not present sufficient arguments to disprove the existence of constitutional res judicata.”
In addition, the Constitutional Court said that there was “lack of clarity, certainty, specificity, relevance and sufficiency in the charges of unconstitutionality” formulated by the lawyer to distort the law that allows abortion in three specific cases.
A plenary session of the Constitutional Court defeated a presentation on the case presented by Judge Alejandro Linares, who was entrusted with resolving the lawsuits, and in which he maintained the thesis that abortion should be legal in Colombia until three months after age of the fetus.
Therefore, since then, the rule that allows abortion in three cases at any time during pregnancy has remained in force: for rape or violent carnal access, including incest; by malformation of the fetus; or due to imminent risk to the mother’s health. This regulation has been in force in the country since 2006 when the high court ruled on the merits in a ruling on the matter.
Now the Court is studying the other two lawsuits that seek to expand the right to abortion to legislation in which the woman is the one who makes the decisions about her body and her rights.