the right to abortion is maintained after ruling of the Colombian Constitutional Court

The voluntary interruption of pregnancy (IVE) continues to be a right for women, girls and adolescents in Colombia. Ruling C-055/22, issued by the Constitutional Court in February 2022, remains in force throughout the territory. But the confusion of the last few days, when the news that the highest court would have reversed its decision, set off the alarm bells of the feminist organizations.

“We call for calm and insist that the Constitutional Court has not reversed its decision on the right to abortion in Colombia,” the Just Cause movement quickly clarified. It is about an amalgamation of organizations and activists that managed, after an extensive debate and several appeals in the High Court, to get the crime of abortion up to the 24th week of gestation out of the Penal Code.

“We can calmly affirm that nothing has changed for Colombian women,” explains Ana Cristina Gónzalez Vélez, a doctor and pioneer of the Just Cause movement.

The new controversy began on Tuesday, when the decision issued by the same Constitutional Court for a specific case was announced: the T-158 of 2023. The ruling resolves in favor of the guardianship imposed by a 23-year-old indigenous woman, who faced barriers with the authorities of her community and met with the refusal of her health promoting entity (EPS) when she tried to access a legal abortion.

“We ask that barriers not be created for indigenous women because one could conclude that there are more requirements to access abortion for indigenous women,” says Viviana Bohórquez, lawyer and director of the Collective We Are Jacarandasto France 24.

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The sexual and reproductive rights of indigenous women under threat

The three magistrates of the Constitutional Court reviewed two rights in tension: the voluntary termination of pregnancy and the self-determination of indigenous peoples. The sentence leaves the final decision on the pregnancy of the women of their community, as in the case of the young woman, to the traditional authorities. This, according to the activists, reduces the reproductive autonomy of indigenous women.

In fact, the young woman who appealed the case was forced to continue with her pregnancy. “Indigenous women after this decision, especially if they are affiliated with the EPS of Cauca, must request that the reservation pronounce in order to access the voluntary termination of pregnancy. This violates their autonomy, professional secrecy, privacy”, denounces Bohórquez.

But in addition, it questioned the right to abortion throughout the territory. “This does not mean that the right is in suspense in Colombia, because there is a robust enough jurisprudence to prove that abortion is part of and intersects with different fundamental rights recognized by our Constitution”, explains to France 24, Catalina Martínez Coral, of the Center for Sexual and Reproductive Rights.

Although the Review Chamber ruled in favor of the young woman, “it makes a confusing and rather unfortunate statement,” according to Martínez Coral. The magistrates say that “health service providers are not obliged to provide abortion services, because abortion would not be a fundamental right”, also that the health system would not be obliged to provide this service.

Since February 2022, a sentence removed abortion from the Penal Code in Colombia

The fact that this sentence has been issued, explains the lawyer Cristina Rosero Arteaga, “in no way eliminates the right to voluntary termination of pregnancy, much less creates the possibility that health providers refuse to provide the service because they could be sanctioned by the health superintendence for failing to comply with the care routes”.

In Colombia, according to the Ministry of Health, “voluntary termination of pregnancy is a right closely linked to the right to life, health, integrity, self-determination, privacy and dignity of women” and must be guaranteed by the Social Security System in Health, as dictated by Resolution 051 of 2023, issued by the Colombian Ministry of Health.

On February 21, 2022, Colombia marked a regional milestone in terms of rights for women and people with the capacity to gestate. After a long and tense debate, nine magistrates of the Constitutional Court, in the Plenary Chamber, issued ruling C-055 or Just Cause Judgment, which decriminalizes abortion up to 24 weeks of gestation.

“This was a great victory for women and people with the capacity to gestate in the country because the recognition of reproductive rights, the right to health, some fundamental rights, reiterates the director of the Center for Reproductive Rights.

Once that period has expired, in the event that the person needs to access the voluntary interruption of the pregnancy, they can do so through judgment C-355 of 2006. This establishes three grounds: when the pregnancy puts the life and health of the the woman, when it is the product of a sexual violation or if it is a non-viable pregnancy.

The violation of a whole “range of recognized fundamental rights”

For the pioneer of the pro-abortion movement in Colombia, Ana Cristina González, “in this guardianship ruling, the high jurisprudence that the Constitutional Court has issued on the matter in relation to abortion and that It had been recognizing its existence and the right to it”.

In a country with a long conservative tradition, the feminist milestone was not in tune with everyone. For a year, several groups that oppose the resolutions in terms of reproductive rights in Colombia have unsuccessfully issued various guardianships and requests for annulment to invalidate the decision of the highest court or obstruct the jurisprudence of the Judgment Just Cause. All of them were rejected for not having sufficient arguments.

Despite the “reversal attempts”, Colombia recognizes the fundamental right to health, among which are sexual and reproductive rights, including the voluntary termination of pregnancy. “When an abortion service is denied in the country, this whole range of recognized fundamental rights is being violated,” adds Martínez Coral.

It is a guaranteed right, but one that faces great barriers in the country. On the one hand, a A good part of society continues to view this advance in reproductive matters and its implementation with suspicion. On the other hand, there are the conditions of structural inequality, which hinder access to pregnancy termination, making it even more complex for rural, indigenous, peasant or Afro-Colombian women.