Colombia’s Constitutional Court rules to decriminalize abortion up to 24 weeks of gestation.
(Updated 2.21.22) On February 21, 2022, the Constitutional Court of Colombia issued a landmark ruling to decriminalize abortion up to 24 weeks of gestation. With this ruling, Colombia is now the eighth country in Latin America and the Caribbean to decriminalize abortion during initial stages of pregnancy and the first to have a model legalizing abortion up to 24 weeks.
Prior to the ruling, abortion in Colombia was a crime with only narrow exceptions that included risk to the health or life of the pregnant woman, when the fetus is not compatible with extrauterine life, and in cases of rape and incest. However, even women qualifying under the exceptions of the law still faced cultural stigmas and barriers to access and those who sought, received or provided abortion care were still at risk for criminal prosecution and imprisonment.
In the 5-4 ruling, the Court ruled to decriminalize abortion until the 24th week of gestation, after which the grounds of risk to health (including mental health), rape and non-viability of the fetus without gestational limit will continue to apply. The ruling is effective immediately. The Court’s request is for the issuance of a comprehensive regulation on sexual and reproductive rights, but its issuance does not condition compliance with the judgment.
The decision came in response to a September 2020 lawsuit filed by the Causa Justa (Just Cause) movement, of which the Center for Reproductive Rights is a member. The lawsuit asked the Colombian Constitutional Court to eliminate the crime of abortion found in Article 122 of Law 599 of 2000 of Colombia’s penal code, reduce barriers to legal abortion care, and end the risk of criminal prosecution of women and girls seeking abortion care and of health care workers providing care.
While the Court ruled to decriminalize abortion, more action must be taken to remove the crime of abortion from the penal code and ensure an end to the unjust and unconstitutional persecution of women and healthcare providers. The Center will continue to work as part of the Causa Justa Movement to make this decision a reality for women, girls and people with gestational capacity in the country. This work includes advocating for the Ministry of Health to provide regulations that favor effective access to legal abortion in Colombia. As part of Causa Justa, the Center will continue to work for the social decriminalization of abortion, and through advocacy and communication campaigns, to advance efforts to break down prejudices and stigmas against the right to free, legal and safe abortion.
Abortion Law in Colombia
Before 2006, Colombia had one of the most restrictive abortion laws in the world, classifying all abortion as a crime with no exceptions. In ruling C-355 of 2006, the Colombian Constitutional Court ruled that abortion could be performed legally under a narrow set of circumstances, which included risk to the health or life of the pregnant woman, non-viable fetal diagnosis, and in cases of rape and incest.
While the 2006 decision was an important advancement for women’s reproductive rights in Colombia, the inclusion of abortion as a crime in the penal code creates stigmas both for those seeking abortions and the healthcare providers who perform them. These obstacles prevent many Colombian women from accessing safe abortion services–even in cases where the pregnant person’s circumstances fall within the exceptions of the law–and most women rely on clandestine abortions that threaten their health, their lives and their dignity.
This lawsuit asked the Court to eliminate the crime of abortion because it is inefficient, violates the rights of women and health workers, and unfairly persecutes vulnerable women. The lawsuit proposed that instead of using criminal law against abortion, the government should create more and better health policies that could help prevent deaths and complications from unsafe abortions and unwanted pregnancies, as well as comprehensive sexual education programs and information on access and availability of contraceptives.
Arguments of the Case
The case made six primary arguments for the unconstitutionality of Colombia’s criminalization of abortion, stating that the crime of abortion violates:
- Women’s right to Voluntary Termination of Pregnancy (VTP) by creating stigma that prevents many women, even those whose circumstances permit abortion under the 2006 law, from accessing safe abortion.
- Individuals’ constitutional right to health because it encourages the practice of unsafe abortion, which increases the likelihood of mortality and maternal morbidity.
- The freedom of profession or trade of health workers by forcing them to risk prosecution when providing abortion services – even those that are technically legal under the 2006 law.
- The equality of migrant women, who face additional barriers to reproductive healthcare access because of their irregular migratory status, and who also face higher risk of being victims of human trafficking and other forms of sexual violence.
- The constitutional right to freedom of conscience by forcing women to comply with beliefs that do not necessarily coincide with their conscience, and violates the principle of the secular state by imposing restrictions on abortion that are linked to religious and moral codes.
- Several constitutional principles of criminal law, citing evidence to suggest that the criminalization of abortion is inefficient at preventing abortions and protecting women’s health, and arguing that decriminalization provides new pathways to reduce both total number of abortions and deaths as a result of unsafe abortions.
The lawsuit also cited the worldwide trend towards abortion decriminalization and the actions taken by global constitutional courts to advance safe abortion access. The suit argued that since the Colombian Congress failed to protect women’s right to abortion in even the narrow circumstances where it was permitted, the Constitutional Court has the authority and the obligation to ensure women’s fundamental rights are honored and accessible to all.
In its decision, the Court accepted the charges regarding the violation of the right to health and, through it, reproductive rights, including voluntary termination of pregnancy, understanding that criminalization creates the main barriers to safe abortion. It also accepted that the criminalization of abortion violated the right to equality of women, girls and adolescents, particularly affecting migrant women. Similarly, the Court accepted that this crime is not useful to prevent abortions from occurring and that, contrary to the Colombian Constitution, it did not respect the principle of minimum use of criminal law.
Causa Justa is a movement in Colombia fighting for the reproductive freedom and autonomy of all women over their bodies and life projects. It includes 90 civil society organizations and more than 150 activists throughout the country, including feminist and grassroots organizations, international organizations, healthcare providers, scholars, experts, and research centers, among others.
Center Attorneys: Catalina Martínez Coral, Cristina Rosero Arteaga.
Co-Counsel/Cooperating Attorneys: La Mesa por la Vida y la Salud de las Mujeres, Women’s Link Worldwide, Católicas por el Derecho a Decidir, Grupo Médico por el Derecho a Decidir.
Plaintiffs: Causa Justa Movement (Center for Reproductive Rights, La Mesa por la Vida y la Salud de las Mujeres, Women’s Link Worldwide, Católicas por el Derecho a Decidir, Grupo Médico por el Derecho a Decidir, 86 additional organizations and 134 Colombian activists)
Timeline of Case:
- September 16, 2020: The Center and partners at the Causa Justa movement filed the lawsuit in the Colombian Constitutional Court, asking the court to eliminate abortion as a crime from the penal code.
- October 20, 2020: The lawsuit was deemed admissible by the Colombian Constitutional Court.
- January 6, 2021: More than 100 “friend of the court” briefs were submitted to the court in favor of eliminating the crime of abortion in Colombia.
- February 21, 2022: The Colombian Constitutional Court ruled 5-4 to decriminalize abortion up to 24 weeks of gestation.
- Colombia’s Highest Court Rules to Decriminalize Abortion | 2.22.2022
- Causa Justa: The Fight to Decriminalize Abortion in Colombia | 08.30.2021
- The Key Argument on Abortion That Changed Everything in Colombia, The New York Times, 03.14.22
- Statements from the Center for Reproductive Rights on the Constitutional Court Decision Decriminalizing Abortion in Colombia | 2.21.22
- República de Colombia Corte Constitucional Comunicado de Prensa Sentencia | 2.21.22