Ana María Méndez, Ana Cristina González Vélez, Catalina Martínez and Mariana Ardila (2021)
“… The event of conception and even its eventual desire do not imply a project, let alone a desire for motherhood” (Pitch, 2003)
The time for the feminist movement to fight for the complete decriminalization of abortion in Colombia has arrived. More than 90 organizations and 150 activists around the country have joined together towards the elimination of abortion crime from the Colombian Penal Code. This legal mobilization has been led by “Causa Justa” Movement (https://causajustaporelaborto.org/) who recently filed a claim before the Colombian Constitutional Court to repeal Article 122 from the Penal Code, which partially criminalizes abortion in the country. In this article, we explain how this legal mobilization started and what are the main strategies that the movement has articulated to reach this objective.
The actual constitutional framework
In 2006, with the judgment C-355/206, the Colombian Constitutional Court ruled that Article 122 of the Penal Code, which criminalized abortion in any circumstance, meant a disproportionate burden for women and, therefore, a violation of women´s fundamental rights. The Court considered that extreme exceptions in the use of criminal law should be applied to protect the rights of the pregnant woman. Thus, the Colombian Constitutional Court decriminalized abortion in three circumstances: (1) when the continuation of pregnancy constitutes a danger to the life or integral health of the woman, certified by a physician or a psychologist; (2) when the pregnancy involves fetal malformation incompatible with life, certified by a physician; and (3) when the pregnancy is the result of sexual violence, duly reported to the official authorities.
Without any doubt, judgment C-355/2006 marked a milestone in the recognition of women’s rights for at least three reasons. First, because the Court limited the use of the punitive power of the State when a woman decides not to continue with a pregnancy in any of the three mentioned circumstances. Second, because the Court centered the debate on the obligation of the State to respect, protect and fulfill the fundamental rights of women, in particular, the right to reproductive autonomy and human dignity. Third, because since this decision, the Court framed the recognition of reproductive rights into a human rights-based approach and, sooner recognized that abortion under one of the three exceptions constitutes a fundamental right of women.
Indeed, with the subsequent constitutional jurisprudence, the Constitutional Court recognized and ratified that the Voluntary Termination of Pregnancy (VTP) in the understanding of the judgment C-355/2006 became a fundamental right of women. As a fundamental right, the Court stated that it required the highest degree of protection and thus established a set of obligations to authorities to guarantee access. Despite this huge advance, abortion crime was not removed. This means that an abortion performed outside of these three grounds or exceptions could be classified as a crime that could result in 1 to 4 years of jail.
“Causa Justa” Movement
Since judgment C-355/2006 was issued, women´s organizations have been working hard to enforce the constitutional framework. We promoted several strategies to enforce the three exceptions such as media campaigns; legal training to medical, administrative, and even judicial professionals; mobilization to disseminate the legal framework; strategic litigation; we provide legal advice to women facing barriers in access to services; among many others. Despite all these efforts, barriers to access abortion health care have not disappeared, and even some other barriers increased, such as the criminalization of women in the country. Recent research conducted by Los Andes University concludes that since 2006 the rates of criminalization increased.
In 2018, La Mesa por la Vida y la Salud de las Mujeres started to build the strategy to achieve the elimination of abortion crime, which was its main goal from the very beginning in 1998. Total decriminalization of abortion crime needed very strong arguments and that’s why this was the starting point. Throughout the first two years of work, La Mesa started building the main set of arguments and called upon other organizations to join forces towards this goal. During this time, we, the leading organizations, focused on strengthening the main arguments that will later encourage the public debate on the elimination of this crime from the Penal Code.
In 2020, the “Causa Justa” Movement went to the public, and we started to implement the prioritized strategies such as the diffusion of the main arguments; pedagogical work with different audiences; campaigns for communication and production of political messages; analysis of legal scenarios; among others.
Furthermore, “Causa Justa” wanted to widen the scope collecting other organization’s expertise in this field and did so by inviting them to join the movement. Today, we amount 90+ organizations and 150+ activists, making “Causa Justa” the first and most important movement fighting for the elimination of abortion crime in Colombia. More and more expressions and allies from diverse backgrounds, ages, and regions of the country keep joining our “Causa Justa” Movement.
The Legal Strategy
Over these 14 years of implementation of the C-355/2006 judgment, the Colombian Constitutional Court has maintained the protection of the right to abortion. With more than 20 judgments the Court has established many constitutional standards reinforcing the obligations to respect, protect and fulfill this right. For example, the Court determined (i) that there is no need for a victim of sexual violence to file a complaint to access the service; (ii) that authorizations from third parties or unnecessary medical boards are considered as prohibited practices; (iii) that even if the life before birth should be protected, there is not a recognition of a constitutional right to life before birth and constitutional rights of the pregnant women will always prevail. These, like many other standards established in the jurisprudence of the Constitutional Court, became the basis of public policies and medical protocols to access abortion health care services.
In contrast, Congress has not done any progress in this area. For several occasions, Constitutional Court has exhorted Congress to regulate access to abortion services, without any success. The feminist movement has also presented 9 bills to advance in this matter, with the same result. On the contrary, there has been several legislative initiatives to limit abortion -by December 2020 we have identified 56 bills-, including the creation of a “Pro-life Commission” as a political party in Congress.
Even with the already made progress in constitutional jurisprudence and other regulations, the implementation of the right to abortion still has many difficulties. Organizations such as La Mesa had accompanied nearly 1400 cases of women who faced barriers, obstacles, and even violent treatment when looking for the procedure. After almost 15 years of fighting for the full implementation of the three exceptions, it has become clear that the fact that abortion remained a crime, creates major difficulties to provide effective access, even under the grounds where it is legal. All in all, we have many reasons to argue that the coexistence of abortion as a crime and as a right creates a deeply ambiguous situation for service providers, women in need of an abortion, and even for public opinion and society itself.
Between 2018 and 2020 Constitutional Court decided three important cases on abortion. (judgments SU-096/2018, C-088/2020, 089/2020). With these cases, it began to be known in the media and in the movement that several Judges were concerned about the barriers that continue to prevent the full implementation of the right to abortion. Even more, it was known that there was a proposal of a judgment admitting access to abortion in the first 14 weeks at the woman’s request. Although this position did not achieve the majority of the judges, at least 4 or 5 out of the 9 Court judges had revealed that they were open to studying possible advances. “Causa Justa” Movement knew that there was an opportunity to propose advances to the Court to go beyond the grounds already recognized in 2006.
In 2020 we decided to collect all the arguments we have been working on since 2017 and decided to raise an innovative and sufficiently mature constitutional claim before the Constitutional Court. Our claim was clear: there is a need to eliminate abortion as a crime.
The most innovative arguments we raised before the Constitutional Court are:
The use of criminal law violates the constitutional recognition of abortion as a fundamental right. As mentioned before, there has been a transformation in the constitutional discourse regarding abortion. Since 2010, the Constitutional Court has recognized and ratified that abortion under the three exceptions has become a fundamental right for women in Colombia. By bringing research, data, statistics, and real cases, we showed the legal ambiguity of abortion as a right and as a crime, creates a hostile environment for the full implementation of the constitutional standards that protect the fundamental right to abortion. We also emphasized that if the State respect, protect and fulfill this right rather than criminalize it, this will reduce abortion stigma and barriers to access abortion health care. This leads to the argument of partial criminalization as the structural barrier that impedes or prevents the full enjoyment of the fundamental right to abortion.
The use of criminal law to regulate abortion violates the principle of equality and non-discrimination. Each of the constitutional claims applies an equality-based approach. First, we showed that the vast majority of women who face obstacles in access to abortion-care are the more vulnerable: women from rural areas, young women, migrants, poor women. And second, abortion crime has been applied in a disproportionate and discriminatory way against the more vulnerable women. We manage to recollect data from the Prosecutor General Office in Colombia that reveals that:
- 97% of the women investigated for abortion crime live in rural areas; nearly 20% were university students; 13% were high school students and 2.7% were engaged in sex work.
- 30% of the women investigated for abortion crime were victims of crimes such as domestic violence, sexual violence, or personal injury.
- In less than 4% out of the total cases initiated since 2006, there is sufficient information on the reasons that justified the abortion. This indicates that the majority of criminal cases are initiated without considering whether the case could have been framed under one of the legal grounds.
The threat of criminal sanction for health care providers violates the constitutional right to choose an occupation and the freedom to engage in work. We introduced the point of view of a new character: health care providers who choose to provide abortion care. Under the actual regulation, abortion crime also applies to the person that provides an abortion aside from the three exceptions. First, we argued that while health care providers are the ones called by the State to provide abortions under the three exceptions, they can also face criminal charges if they do not interpret “correctly” abortion standards. We showed that indeed there have been cases of health care providers facing criminal charges. Second, we also brought recent research that shows that there are doctors in Colombia refusing to provide abortion-care, not because they are conscientious objectors, but because of the fear of facing criminal charges. We also talked about how abortion care providers are usually stigmatized, face marginalization, work overload. In this sense, we argued that with the partial criminalization, the State is threatening the freedom to engage in work for those health care providers that decide to provide abortion care because it has failed in the obligation to provide the conditions to engage in work freely.
These and other arguments were constructed very carefully and with sufficient support to show the Court that the actual debate on abortion has changed and that this topic deserves another constitutional revision. After almost 15 years of implementation of the actual framework, we have strong reasons to say that abortion should not be a matter of criminal law, but a matter of health-care policies or public policies. In conclusion, our claim was admitted by the Constitutional Court last year, meaning that the Court considered there is a potential constitutional controversy that deserves to be discussed.
Moving forward in our “Causa Justa” claim
It is important to point out that the “Causa Justa” Movement is not only aiming to set a legal standard but it also tends to contribute to eliminate the causes of abortion stigma and to strengthen social mobilization. To achieve this, the whole legal strategy was built together with a communication and a social mobilization strategy. We have managed to be constantly on the public agenda, and even some important opinion leaders from diverse backgrounds who had not spoken about abortion before, have done it, generally speaking, to support our Cause.
Besides, 114 high-quality national and international amicus curiae are also backing up our constitutional claim giving their expert opinions from different standpoints to the court. These documents come from top law experts on criminal, constitutional, and human rights law, health-care professionals, indigenous women leaders, Afro-Colombian organizations, LGBT organizations, and local organizations among others.
We are hopeful the Colombian Constitutional Court will decide to move forward with our claim, making the country a leading example in the region, setting a precedent towards women reproductive rights, and marking a new era where women can freely decide over their bodies without the thread of criminal sanction.
 See a summary of the judgment: https://www.womenslinkworldwide.org/en/files/1353/c355-2006-english-version.pdf
 Since judgment C-355/2006, the Colombian Constitutional Court has ruled more than 20 cases related to the right to abortion. See https://derechoalaborto.com/
 See https://pubmed.ncbi.nlm.nih.gov/25555761/
 See https://ngx249.inmotionhosting.com/~despen5/wp-content/uploads/2019/02/12.-Barreras_IVE_vf_WEB.pdf
 Jaramillo Sierra, IC; Santamaría Uribe, N and Forero Mesa, W. La Criminalización del aborto en Colombia. 2020. In process of publication. Universidad de los Andes. Mesa por la Vida y la Salud de las Mujeres. The study analyzed a database of the Prosecutor’s Office with 4,834 cases of abortion between 1998 and July 2019.
 See https://despenalizaciondelaborto.org.co/
 See https://causajustaporelaborto.com/wp-content/uploads/2020/09/Argumentos_CausaJusta-virtual-final.pdf
 See the Petition of Unconstitutionality against the Criminal Law Regulating Abortion in Colombia.
 See also: https://despenalizaciondelaborto.org.co/wp-content/uploads/2019/12/Libro-IVE-Migrantes.-VF.pdf and https://despenalizaciondelaborto.org.co/wp-content/uploads/2020/12/Inf-tecnico-Covid19-v9-1.pdf
 According to the data provided by the Prosecutor General Office, of the total of indicted men (861 men), 5.63% correspond to health professionals. However, there are no data on female health professionals indicted for the same crime.
 See https://globaldoctorsforchoice.org/wp-content/uploads/Stigma-in-abortion-provision-protecting-providers-2.pdf. and https://www.dejusticia.org/publication/lejo s-del-derecho-la-interrupcion-voluntaria-del-embarazo-en-el-sistema-general-de-seguridad-social-en-salud/