By Neelabh Niket
On 2nd March 2020, the Constitutional Court of Colombia with a 6-3 motion refused to change the status quo of the restrictive abortion laws in the country which allowed the practice of abortion only on selected grounds. While doing so, the Apex Court missed a golden opportunity in heralding a transformative trend towards women’s reproductive rights and autonomy concerning their body. The discussion on the issue commenced when Natalia Bernal, a hardline anti-abortion lawyer filed a petition in the Court seeking a blanket ban on abortions, hitherto allowed on certain grounds in the nation. It rather provided the judiciary with a chance to review their constitutionality in the first place and strike down the regressive laws prevailing in Columbia. The Court, though, rejected the plea citing “substantive ineptitude” in the claim but did little to bring key reforms in the system.
Tracing the Evolution of Abortion Laws in Columbia
The legal developments in a state duly mirror the constant cultural changes occurring within it. Therefore, it becomes pertinent to first delve into the annals of history to comprehend the culture entrenched in the country before analyzing the legal situation.
Columbia is and has been predominantly a Catholic country since the latter half of the 16th century. The citizens are so intricately connected with the holy church that the nation is sometimes termed as the most catholic country in Latin America. The Colombian Constitution in 1886, termed Catholicism as the “country.” Consequently, therefore, the values of liberalism such as divorce and abortion were ridiculed and were met with extreme hostility. It was only in 1991 that the country chose a more plural path and resolved to renounce Catholicism as the official religion and thereafter legalized divorce. Paradoxically, however, the state has held onto some catholic mores and rejected demands of legalizing abortion.
Till 2006, abortion remained a taboo and was criminalized under the Columbian law on all grounds without exception. Articles 122, 123 and 124 of the Columbian Penal Code regulate the law on abortion in Columbia. These articles broadly sought to punish a woman who self-induced or gave consent to someone else inducing her abortion to imprisonment for a period of 16 to 54 months. In 2006, the decision of the Constitutional Court of Columbia in the case of Martha Sulay González led to a paradigm shift in the legal position when it declared the penal provisions concerning abortion in the country unconstitutional. The decision was pioneering in that it for the first time legally allowed the practice of abortion albeit under certain conditions. It essentially etched out three cardinal conditions under which an abortion could be termed as legal: –
- Rape, incest and any form of artificial insemination
- A threat to the mother’s physical or mental health or life (subject to medical certification)
- Fetal malformations
The judgement, though only partially decriminalized abortion but was still widely celebrated as it exposed the patriarchal mindset of the society which stemmed the idea that a woman’s duty was, to also conceive such a child, the seeds of whose were thrust inside her without her consent. With the order, Columbia’s Court not only set a precedent for the other Latin American Countries but also professed its desire to forego orthodox notions and adopt progressive ones.
Now, 14 years have passed since the judgement was delivered, and the legislature has yet not backed the same with any statutory amendment, despite repeated directions from the Court. Not surprisingly, the Catholic Church has publicly complimented the government for not complying with the Court’s order.
Significance of the 2nd March Judgment
Given the impressive track record of Columbia’s Constitutional Court, it authorizing the practice of abortion in the first few months of pregnancy was zealously anticipated. The judgement not only would have spread ripples across a region known for its restricted laws but could have also further consolidated the Court’s reputation of an institution upholding women’s rights and dignity.
The Court broadly had three major options to pursue from: –
- It could decide to maintain the status quo of Abortion Laws in the country, demonstrating due respect to the 2006 precedent on the issue.
- It could rule in favour of the petition which would be to criminalize abortion again and overrule its previous decision.
- Finally, it could take the gutsy path of decriminalizing abortion to a larger extent, including minimum restrictions like banning it for commercial purposes.
The Bench unexpectedly took the easier path of maintaining the sanctity of the prevailing laws in the country. It would have been counter-intuitive to expect the Court to overrule its decision and drive the jurisprudence of the country in the reverse direction as the past is testament to the Court’s outspoken nature on taking bold stands for human rights and its protection. This case, however, was an aberration in which the Court chose to overlook the atrocities of the women who are either compelled to give birth to a child who was never intended to be conceived or choose clandestine and unsafe methods to induce abortion. This ruling might also be interpreted as the Court’s tacit approval of the current laws governing abortion in the nation, which if true would be nothing short of an embarrassment for a Court which prides itself with setting examples in the Southern Continent.
What Columbia Can Learn From Other Nations?
Columbia, perhaps, could take a cue from its counterparts in Latin America. An intriguing case, for instance, is its neighbouring Caribbean country of Cuba. Cuba, due to the communist revolution led by Fidel Castro in the early 1960s resented the Church and never allowed it to envelope the country with its rudimentary beliefs. The Country has always been ahead in undertaking steps to adopt liberal concepts like the same-sex sexual relationships, by legalizing private, non-commercial sexual relations in as early as 1979 and also moving swiftly towards legalizing same-sex marriages through a Family Code amendment. The same was, however, implemented in Columbia only in 2016 through the order of the Constitutional Court. In a similar vein, abortion in Cuba was decriminalized in 1965 and was made more easily accessible in 1979. Another very striking difference is how the abovementioned changes have occurred in the respective countries, Columbia on one hand is solely dependent on the Constitutional Court for upholding its inalienable rights, Cuba on the other embraces these changes through timely legislations. These scenarios only substantiate the close-knitted relationship of the Columbian Congress with the Catholic Church.
International Obligations vis-à-vis Abortion
Colombia is a signatory to the International Covenant on Civil and Political Rights (ICCPR) which is an UN-supervised multilateral treaty adopted by more than 70 countries. The treaty strives towards guiding the state parties in effectively delivering full realization of the highest level of attainable standard of basic civil rights. Juxtaposing the articles of the Covenant with laws of abortion in the country will help in determining whether it has followed the treaty in letter and spirit. It may be gleaned after a careful study that the jurisprudence suffers from several vices on comparison with the articles of the Covenant. For instance, Article 7 seeks to guarantee every person the right not to be subjected to cruel and inhuman treatment or punishment. The state by allowing abortion only on selected grounds stands in flagrant violation of this article as it compels the woman to let nature run its course, despite the hardships, she has to suffer due to an unintended pregnancy. The whole process ultimately metes out unnecessary torture and mental trauma to the mother. Furthermore, Article 2 (1) read with Article 17 places obligation on the state parties to treat every individual as equal without discriminating them on the grounds of race, religion, sex, nationality, etc., enabling them to enjoy their privacy and honour. While there are no restrictions on the reproductive autonomy of males, it is seriously compromised in cases of females. The law stereotypes them as mothers and caregivers and objectifies them as mere reproductive instruments. These ideas clearly contravene with the very object of the articles.
Multiple International Human Rights Bodies have iterated time and again that the cramped authorization of abortion in certain cases does not sufficiently protect women’s reproductive rights and also poses a threat to their right of self-determination. They also acknowledge that there is a proportional relationship between criminalizing abortion and maternal deaths due to the inducement of unsafe and sloppy methods of abortion. According to the Institute of Guttmacher, an estimated 400,400 induced abortions were performed in Colombia in 2008, of which only 322 were reported as legal procedures.
Conclusion
Columbia’s Apex Court might have signalled that the country is not yet prepared for the inevitable change. But, with even country like Argentina choosing to shed away the patriarchal debris of the past and opting for more progressive reforms, a change seems just around the corner. Ironically enough, it will probably come from the same institution which has refused to register its relevance now. For the advocates and supporters of women’s rights, who had religiously hitched their hopes with the court for an encouraging response, the wait seems to get longer.
[The author is a first-year law student at Hidayatullah National Law University, Raipur.]
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