Obstacles and challenges following the partial decriminalisation of abortion in Colombia

Abstract

Abstract

During a highly contested process, abortion was partially decriminalised in Colombia in 2006 by the Constitutional Court: when the pregnancy threatens a woman's life or health, in cases of severe fetal malformations incompatible with life, and in cases of rape, incest or unwanted insemination. However, Colombian women still face obstacles to accessing abortion services. This is illustrated by 36 cases of women who in 2006–08 were denied the right to a lawful termination of pregnancy, or had unjustified obstacles put in their path which delayed the termination, which are analysed in this article. We argue that the obstacles resulted from fundamental disagreements about abortion and misunderstandings regarding the ethical, legal and medical requirements arising from the Court's decision. In order to avoid obstacles such as demands for a judge's authorisation, institutional claims of conscientious objection, rejection of a claim of rape, or refusal of health insurance coverage for a legal termination, which constitute discrimination against women, three main strategies are suggested: public ownership of the Court's decision by all Colombian citizens, a professional approach by those involved in the provision of services in line with the law, and monitoring of its implementation by governmental and non-governmental organisations.

Résumé

Au cours d'une procédure extrêmement contestée, la Cour constitutionnelle colombienne a partiellement décriminalisé l'avortement en 2006 : quand la grossesse menace la vie ou la santé de la femme, en cas de graves malformations fłtales incompatibles avec la vie, et en cas de viol, d'inceste ou d'insémination non désirée. Néanmoins, les Colombiennes se heurtent encore à des obstacles pour accéder aux services d'avortement. Cette situation est illustrée par le cas de 36 femmes qui en 2006–08 se sont vu refuser le droit à une interruption légale de grossesse, ou ont rencontré des difficultés injustifiées ayant retardé l'avortement, qui sont analysées dans l'article. Nous estimons que ces difficultés résultaient de désaccords fondamentaux sur l'avortement et de malentendus sur les conditions éthiques, juridiques et médicales découlant de la décision de la Cour. Afin d'éviter des obstacles tels que l'obligation de demander l'autorisation d'un juge, le droit à l'objection de conscience revendiqué par des institutions, la négation du viol ou le refus de couverture d'un avortement légal par l'assurance maladie, qui sont autant de discriminations à l'égard des femmes, nous suggérons trois principales stratégies : l'appropriation publique de la décision de la Cour par tous les citoyens colombiens ; une approche professionnelle par les participants à la prestation des services conformément à la loi et le suivi de son application par des organisations gouvernementales et non gouvernementales.

Resumen

Durante un proceso muy disputado en el año 2006, el aborto fue despenalizado parcialmente en Colombia por la Corte Constitucional: cuando el embarazo pone en peligro la vida o salud de la mujer, en casos de graves malformaciones fetales incompatibles con la vida y en casos de violación, incesto o inseminación no deseado. Sin embargo, las mujeres colombianas aún se enfrentan con obstáculos para acceder a los servicios de aborto. Esto es ilustrado por los 36 casos de mujeres a quienes en 2006–08 se les negó el derecho a la interrupción legal del embarazo o se les plantearon obstáculos injustos que retrasaron la interrupción, los cuales se analizan en este artículo. Argüimos que los obstáculos fueron el resultado de desacuerdos fundamentales respecto al aborto y malos entendidos en cuanto a los requisitos éticos, jurídicos y médicos que surgieron del fallo de la corte. A fin de evitar obstáculos como exigencia de obtener la autorización de un juez, reivindicaciones institucionales de objeción de consciencia, rechazo de una denuncia de violación o negación de cobertura por el seguro médico para una interrupción legal, los cuales constituyen discriminación contra las mujeres, se sugieren tres estrategias principales: aceptación pública del fallo judicial por toda la ciudadanía colombiana, un enfoque profesional por parte de las personas involucradas en la prestación de servicios de conformidad con la ley y el monitoreo de su implementación por el gobierno y organizaciones no gubernamentales.

Key Words:

• abortion law and policy
• abortion providers and services
• Colombia

Although Latin America has some of the world's most restrictive abortion laws, the number of abortions remains comparatively high, and the region ranks first in the incidence of unsafe abortion. Many abortions are clandestine and represent a serious threat to health and life, particularly among poorer women.^1–5 In the last 20 years, the issue of abortion has increased in importance on national political agendas in Latin America, with much public discussion now taking place on the subject.^2,5–7 While a few countries have placed more restrictions on abortion in their laws (Chile, El Salvador, Dominican Republic and Nicaragua), several others (Mexico City, Peru) have started to adopt a more liberal legal framework.⁸⁹ This is the case in Colombia, where the partial decriminalisation of abortion in 2006 by the Constitutional Court¹⁰ has led to a process whereby ethics, law and politics have overlapped in a remarkable way.⁷

During the two years following the Court's ruling, however, it became clear that enforcement and application of the judgement would not be an easy task.^11–15 In this article, we give a brief history of the process that led to the decision, and analyse the cases of 36 women who faced unjustified obstacles in obtaining a legal termination of pregnancy after 2006, which arose from unresolved ethical, medical and legal discrepancies in the implementation of the new law.

The decriminalisation of abortion in Colombia

Despite the law on abortion before 2006, Colombian society tolerated the practice, and the places where abortion was available were well known.^9,16 Criminalisation generated a flourishing underground industry where many women received poor care, leading to horrendous cases of complications for health care professionals to address on a weekly basis.¹³ This well-known situation, in which illegal usually means unsafe, made abortion a leading cause of maternal morbidity and mortality.^3,4,17 Official statistics on abortion for Colombia show the magnitude of the problem but are incomplete. In the 1980s, based on hospital admissions for treatment of abortion-related complications, there were 250,000–350,000 abortions annually.¹⁸ A study in the late 1990s found that one-third of urban women had had an abortion, and young and poor women were more likely to have had an abortion.¹⁹ Since 2006, there have been an estimated 320,000–450,000 backstreet abortions per year.¹⁴¹⁷ Yet regardless of statistics:

“Absolute criminalization of abortion turns it into a public health matter and produces social inequality.” ²⁰

Between 1975 and 2006, attempts to tackle the problem of unsafe abortion were made. Five bills were tabled in the Congress to guarantee legal termination of pregnancy; all were voted down.²¹ Then, on 10 May 2006, a woman lawyer filed a suit in the Constitutional Court arguing that the ban on abortion was unconstitutional,^* and the Court partially decriminalised abortion.¹⁰²² The Court considered four main arguments:

•	international human rights law is part of the Colombian constitutional remit;
•	the legal protection of the “unborn” should be balanced against other rights, principles and values in the Constitution;
•	women's rights and gender equality are constitutionally protected; and finally,
•	the principle of proportionality imposes limits on legislation regarding the criminalisation of abortion.23

The Court ruled that abortion would no longer be a criminal offence in three instances: if the pregnancy constituted a threat to the pregnant woman's life or health, if the fetus had severe malformations incompatible with life, or if the pregnancy was the result of rape, incest or unwanted insemination. Following the ruling, the Ministry of Social Protection issued legal norms to regulate this new service that the Colombian health care system should provide.

Several factors contributed to the Court's decision.^5,21 Firstly, the social activism of women's organisations. Secondly, the new political and legal environment brought about by the 1991 Political Constitution, which emphasised both pluralism and the fundamental rights of the individual.^{24 †} Thirdly, the Constitutional Court itself played a crucial role. Even though it declared in 1994 that the legal ban on abortion was constitutional, through other case decisions and its close relationship with Colombian society since its creation in 1991, the Court indirectly promoted open, public discussion on this issue over the years.²³²⁵ In addition, the judges sitting on the Court were considered much more progressive in 2006, and it was crucial that they allowed a liberal debate on the decriminalisation of abortion. Finally and importantly, the public, including health care professionals, became increasingly supportive of legal abortion in certain situations.^2,13

Yet despite the Court's ruling, in practice the right of Colombian women to access a legal abortion is not yet always recognised by those responsible for providing abortion services.

Cases that illustrate difficulties in obtaining a legal abortion

Between May 2006 and April 2008, 46 women came to La Mesa por la Vida y la Salud de las Mujeres (Network for Women's Lives and Health, or La Mesa)^* seeking information about and/or help to obtain legal termination of pregnancy. Forty of them had been referred by a non-governmental organisation, and the rest by a health care professional or member of public services. In 36 of the 46 cases, a legal termination was denied or only obtained after a protracted bureaucratic process, requiring several medical or legal referrals. In the end, 29 of the women went on to have a termination. Six decided to continue their pregnancies (three before seeking abortion from the health system and three after one refusal from the health system); there is no information about one case. In the other ten cases, an abortion did not take place; no information about the reasons was recorded.

These experiences were documented by representatives of La Mesa, though not specifically for research purposes. As the number of cases mounted, La Mesa convened an independent, interdisciplinary group, whose members are the authors of this article, to analyse the information in order to understand the barriers Colombian women were facing in seeking legal termination of pregnancy.

Table 1 summarises characteristics of the 36 women who encountered refusals and their reason for seeking an abortion. 25% of them were aged 11–17 years; the oldest was 41. Almost two-thirds had no children, while 37% had between one and four children. The majority were single (67%), lived in a city (82%), and belonged to the poorer social strata (65%).

short-legendTable 1

On what basis were women obstructed? In 18 of the 36 cases, whatever the woman's socioeconomic level, a legal termination was obstructed because health care providers made unjustified requests for legal or other authorisation, such as signatures and stamps. In 13 of these 18 cases, abortion services were not available at local health care facilities, undue pressure was put on the woman to continue the pregnancy by a health professional, there were unjustified delays in providing the abortion and women's rape claims were sometimes questioned. In four cases, institutional conscientious objection (which is not permitted for institutions, only for individuals), or claiming not to be aware of the Court ruling were given as reasons for refusal by health professionals.

Delaying tactics were also frequent. Table 2 shows the number of days of delay experienced by 22 women related to their reason for abortion.

short-legendTable 2

In 11 cases women experienced long delays in obtaining an abortion on grounds of rape. Much of the delay was because the woman took a long time to report the rape. Only one woman reported the rape the same day it happened; of the other ten, the woman waited between 19 and 134 days to report the rape, with an average of 72 days. This makes it urgent that when abortion is then requested, it should be provided without further delay. However, the number of additional days between the woman's first request for an abortion and the actual abortion ranged from 2 to 44 days, with an average of 16 days. Overall, the total number of days between the occurrence of rape and the abortion ranged from 37 to 150 days, with an average of 79 days (data not shown).

The obstacles: a matter of fundamental disagreements

After the Court ruling, the lack of timely, good quality abortion services was not only a consequence of managerial inefficiencies in the health services. The barriers described above reflected far wider problems: first, the basic failure of Colombian society to understand what the Court ruling means, and second, the unrecognised and unresolved ethical, medical and legal differences over abortion that have continued to exist, which have made the implementation and fulfilment of the ruling a complex and difficult task. In the Preamble to the Constitution of 1991, Colombia defined itself as:

“[a] social state governed by the rule of law…, democratic, participatory and pluralistic, based on respect for human dignity, work and solidarity between all citizens…” ²⁴

Moreover, the constitutional principle of respect for autonomy, as covered by Article 16, states that:

“[a]ll persons are entitled to their free personal development without limitations other than those imposed by the rights of others and those which are prescribed by the legal system.” ²⁴

According to these principles, Colombian citizens are entitled to express their own values in terms of what they do with their bodies and lives. This means that Colombian citizens should learn to recognise that what certain individuals ought to do because of their particular view of the Good (which is a matter of ethics) is not necessarily what all individuals must do (which is a matter of law).⁷ Consequently, legal termination of pregnancy represents an option that has been made available by law to all Colombian women, creating an obligation on those designated by law to provide such a service. Confusion between ethical beliefs and legal obligations regarding the Court's decision is at the bottom of profound disputes and contention in relation to medical autonomy vs. women's autonomy, protection of fetal life vs. protection of women's lives, and ignorance or abuse of the law.

Medical autonomy vs. women's autonomy

In the Court's view, the ban on abortion was a disproportionate measure in those cases where continuing the pregnancy might constitute an unacceptable risk to the woman's health or life.¹⁰ This includes all circumstances in which going through with the pregnancy might affect or diminish the woman's health. However, the Court recognised that technical aspects regarding abortion were not in its remit and that health care professionals were the ones who should decide on these matters. Yet although the health indication for performing an abortion is considered by some as one of the most important outcomes of the Court ruling, its application has caused many problems.

“…[I]nconsistencies in… interpretation and implementation of the health indication… can result in discrepancies in practice and discrimination… [and] translate into obstacles that prevent women from exercising fundamental rights and freedoms… and violate their right to equal protection before the law.” ²⁶

It is important to recognise that the application of the health exception depends on an understanding of the right to health as a human right, and that it is the individual who is the holder of the right.²⁷ Although the guarantee of a right to health is problematic because it is such a broad concept, the provision of adequate health care services should be guaranteed for everyone, including the women who have health grounds for abortion, which should be understood to include mental as well as physical health.²⁸

Those who have criticised the ruling of the Court have argued that the health exception could be a slippery slope to abortion on demand, something which has not actually happened. Others have insinuated that women may lie or invent stories about how their health is compromised in order to get a legal abortion. However, the Court ruled that in cases of rape and incest it is necessary to consider the good faith and responsibility of the pregnant woman,¹⁰²³ and this should apply with health grounds as well.

Protection of fetal life vs. protection of women's lives

The concept of moral status of an entity is fundamental to the moral obligations owed to such an entity.²⁹ As applied to fetal life, this concept often causes debate, and entails important practical implications. In the case of abortion, whilst some believe that there is no fundamental difference in moral status between an embryo/fetus and an adult person, others believe that only entities with rationality, moral feelings and self-awareness have full moral status.³⁰ The Court ruling states that it is necessary to consider human life as a dynamic process that includes different stages of development, which means that there are degrees and nuances that define how, and to what extent, the legal protection of fetal life should be granted.

In some of the 36 cases we met, the women appeared to be denied a legal abortion because the health professional or institution responsible for providing abortions considered that the embryo/fetus' rights outweighed the woman's. In one case, a doctor insulted the woman by calling her “a killer” when she asked for an abortion on the grounds of fetal malformation. To make things worse, this doctor cited the example of circus dwarfs as demonstrating that a “happy life” was possible in any case. Therefore, he claimed, even with an abnormality her child might live a successful life too. Such health care professionals act as “prosecutors” when they disagree with the woman's decision. Without exception, it is unacceptable to victimise women in this way.

The meaning of malformation incompatible with life is as complex as the risk to health in clinical terms. There are severe malformations that are clearly incompatible with extra-uterine life, such as anencephaly. However, there are also serious malformations and pathological conditions, the severity of which are, technically speaking, difficult to diagnose accurately during pregnancy. Recognising that it was beyond their remit to define this, the Court left it to doctors to resolve. Had the Court recognised the range of meanings of “malformation incompatible with life” and “health exception”, there would have been less room for doctors to introduce personal prejudice when dealing with such cases. Guidelines based on scientific evidence and international norms would reduce the risk of discrimination instead.

Also when considering the protection of women's lives it is necessary to consider not only medical aspects, but also social ones. Given the conditions of poverty and violence in which many people in Colombia live, the absence of adequate social and institutional support should also be taken into account. In one of the cases encountered, for example, a woman was raped by a member of an armed group in a well-known rural conflict zone, and had to travel on her own to the capital city to request a termination, as it was not available in her local area. Once in the capital, she became lost in the bureaucracy of the health care system,³¹ which added to her suffering. Cases like this indicate that failures of the health care system can become a kind of violence against women.

Ignorance or abuse of the law

The legal system itself can, paradoxically, become a source of injustice. Inefficiency, corruption and bureaucracy are factors that exacerbate the situation, particularly in cases of sexual abuse. In one case, a judge refused to admit the petition of a woman who wanted her local hospital to comply with the law, after having been denied a legal abortion on the ground of rape. Only when the judge was advised by a lawyer that in denying to hear this woman he might be guilty of legal and ethical misconduct did he finally agree to receive her petition. In another case, a pre-paid health care company denied a legal abortion on the grounds that their contract did not include such a service. The woman in this case struggled to find out which person or company should then provide the service.

The request for “legal” and other documents may result in denial of treatment. It constitutes an abuse of the law because such documents are not required by law. In the cases analysed here, the request by health care providers for authorisation for the abortion from a judge or with other documentation might be understood as a way for them to shield themselves against any legal comeback. However, this imposes an unwarranted burden on women who are legally entitled to an abortion.

Because many health care professionals remain unfamiliar with the Court ruling, they can easily make mistakes and deny women legal services. Moreover, they may be more vulnerable if colleagues in their health care institutions unduly press them to refuse a legal termination of pregnancy. For these reasons, they must have complete information about the Court ruling and the associated legal regulations.

What should be done?

Public ownership of the decision

Colombian women now have a constitutional right to receive good quality medical services should they opt for an abortion under any of the three indications legalised by the Constitutional Court. This means that governmental authorities must supervise the fulfilment of the law, health insurance companies must ensure the service is funded, and health services and health care professionals must provide safe abortions.

However, people need to be properly informed about legal decisions in order to be able to claim their rights. We strongly believe that women should be allowed to make their own decisions by fulfilling three fundamental conditions of informed consent: adequate and complete information, understanding, and voluntariness.³² The Ministry of Social Protection, Secretaries of Health and health care institutions (both public and private) should provide easily accessible public information on this issue.

There have already been some initiatives to make the content of the Court's decision as public as possible. In 2006, the Social Protection Ministry and the National University of Colombia promoted better understanding of the content of the Court decision and started to monitor whether and how health care institutions were complying with the ruling.²¹ In addition, La Mesa have held workshops and designed informational material for health care professionals, lawyers and other social agents. The legal service to help women cope with refusal of legal terminations, unwarranted delays and poor treatment by doctors, other professionals or public authorities where the 46 cases reported here were lodged, is another initiative by La Mesa.

Improving professional behaviour

Health care professions have specific ethical as well as legal duties. The Court ruling guarantees the right of conscientious objection but this right is confined to individuals.¹⁰ Moreover, we support the argument that:

“True conscientious objection requires that a balance be struck between the rights of the objector and the health rights of patients, in this case women.” ³³

Doctors must not be allowed to use conscientious objection as an excuse to evade their professional duties. Preventing someone from accessing a health care service to which they are entitled constitutes ethical and legal misconduct. On this issue, the American College of Obstetricians and Gynaecologists (ACOG) has argued that:

“Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients, negatively affect a patient's health, are based on scientific misinformation, or create or reinforce racial or socioeconomic inequalities.” ³⁴

Monitoring what is happening

Since women in the complex situation of requesting a legal abortion often have health conditions, or may have had sad and painful experiences, the provision of abortion services should be monitored by governmental and non-governmental organisations and special care taken by health care institutions to ensure they are providing a supportive service. The Ministry of Social Protection has instituted several norms and guidelines in relation to legal abortion services. We mention here the three most important:

•	Decree 4444/2006 explains how health care services should provide abortions, defines conscientious objection and incorporates the World Health Organization's guidelines on safe abortion.§
•	Resolution 4905/2006 and the Technical Norm for the Provision of Voluntary Termination of Pregnancy is a guideline for health care providers to guarantee good medical attention to women who request a legal termination.
•	Agreement 350/2006 states that abortion services should be included in the basic health care plans available for all Colombians.21

Governmental offices, professional bodies and private organisations have an important role to play as well: helping to define policies of the Ministry of Social Protection, monitoring of practice by the National Health Superintendent, the Office of the Inspector General, the Ombudsman's Office and Health Secretaries, and investigation of ethical misconduct and breaches of the law by the National Police, the Attorney General's Office and professional ethical tribunals.

Finally, the legal mechanism of Tutela (Tutelage Action), a writ for the protection of fundamental Constitutional rights,³¹ is an important tool for Colombian women to demand respect for their right to a legal termination of pregnancy. The Constitutional Court has clarified particular aspects of the 2006 decision. In T-988/2007, health care providers are reminded that they should not make any extra or unlawful demand on women seeking a legal termination. In T-209/2008 the Court explained in detail how and when conscientious objection can be invoked. And in T-946/2008, the Court ruled that the judges who failed to protect the rights of a woman who was denied a legal termination would be investigated. This ruling can be seen as a reminder that any authority who does not comply with their statutory duties regarding provision of legal abortion will be investigated.

Conclusion

In the two years after the Court's decision, La Mesa encountered women who were denied a legal abortion or had obstacles put in their way that made the abortion later than necessary. These cases made it clear that the announcement of Decision C-355 in 2006 did not ensure it would be implemented at all or sufficiently. Groups such as La Mesa and others who support this law have needed to advocate for adequate abortion services and the promotion of social and professional practice with regard to abortion that is genuinely respectful of women's circumstances and choices.

The Court ruling was not the end of the debate about abortion in Colombia. However, the partial decriminalisation of abortion has created a huge challenge for Colombian society, as legal abortion services become part of essential health care provision.

There are some signs of an improvement in the situation in the last two years, e.g. women and health care professionals are now more informed about the new law and some health care providers have reduced the bureaucratic obstacles women face. However, many barriers remain. In remote areas and small towns, for example, the situation may be less improved than in urban areas due to weaker infrastructure, less access to information and weaker advocacy.

For the future, greater understanding is needed of why it is necessary to distinguish between the need for legal enforcement of Decision C-355/2006 from ethical disagreements and debates about abortion that will probably continue. Secondly, the meaning and limitations of conscience objection and interpretation of the health exception require more public debate and ownership. Lastly, beyond the decriminalisation of abortion itself, much work is still necessary to reduce the number of unwanted pregnancies – by providing better sexual education, reducing gender inequalities and poverty, improving sexual and reproductive health care services, and promoting the democratic and pluralistic values brought into being by the Constitution of 1991.

Notes

The views expressed in this paper are those of the authors alone and do not represent the views of any institution with which they may be associated. Figures and statistical data used in this paper were presented by Elena Prada Salas in the Third Research Meeting on Unwanted Pregnancy and Unsafe Abortion: Public Health Challenges in Latin America and the Caribbean. Mexico City, 7–10 October 2008.

Notes

* As appears in Articles 122, 123 and 124 of the Penal Code, in force since 2000.²³

† Title II of the Constitution is devoted to the topic of rights, based on the Universal Declaration of Human Rights.²⁴

* A group of Colombian institutions and individuals that provides legal support to women who have difficulties accessing a legal abortion, among other services. See: <www.despenalizaciondelaborto.org.co/-Que-es-la-Mesa-por-la-Vida-y-la->.

§ However, this decree has been suspended by the Council of State, the highest administrative court, since the Inspector General challenged it in 2008 on the grounds that the Ministry of Social Protection was not entitled to regulate the Court decision.³⁵