Women's Link Worldwide, 2007 Foreword by
The May 10, 2006 decision of the Constitutional Court of Colombia, which extended the grounds for legal abortion, is historic. The Court decided, in case C-355/06, that the criminal prohibition of abortion in all circumstances violates women's fundamental rights. These rights were found protected by the 1991 Colombian Constitution and by international human rights law. The Court explained that the absolute ban to protect fetal interests places a disproportionate burden on women's exercise of their human rights. The Court ruled that abortion is legally permitted in the following circumstances:
| • | When the continuation of pregnancy presents a risk to the life or physical or mental health of the woman, | ||||
| • | When there are serious malformations that make the fetus nonviable, and | ||||
| • | When the pregnancy is the result of a criminal act of rape, incest, unwanted artificial insemination or unwanted implantation of a fertilized ovule. | ||||
The Court explained that a medical doctor must certify whether either of the first two indications is met. Moreover, the alleged criminal act must be reported to appropriate authorities, but need not be incontrovertibly established as a precondition to an abortion.
The Court recognized the constitutional value of life, including fetal life, but drew the distinction between the value of life and the claimed legal right to life. The legal right to life was ruled to be limited to a born human being, while the constitutional value of life can be protected before a fetus has been born. The Court explained that the state can protect prenatal life, but it may do so only in a way that is compatible with the rights of women, including their rights to life and health protected by the Colombian Constitution and, for example, the International Covenant on Economic, Social and Cultural Rights. Measures that the state may take to protect prenatal interests compatibly with women's constitutional and human rights include measures to prevent recurrent miscarriage of wanted pregnancies, the improvement of prenatal and emergency obstetric care, and efforts to prevent child marriage in order that women are sufficiently mature to be capable of safely bearing children.
Often, societies have used the occasion of a woman's pregnancy to suspend her human rights. Indeed, in some countries legislatures and some courts continue to use women's pregnancies as an opportunity to subordinate women's human rights in order to demonstrate allegiance to protection of the professed higher value of unborn life. In contrast, the Constitutional Court of Colombia demonstrated that it takes the rights of pregnant women seriously. The Court emphasized that the rights of all pregnant women have to be protected, including adolescent, poor, rural and indigenous women, and those women displaced by violence. All women possess a full entitlement to their human rights, which include their rights to:
| • | Dignity, liberty and free development of the individual person, | ||||
| • | Health, life, bodily integrity and reproductive autonomy, and | ||||
| • | Equality with men. | ||||
These rights constitute reproductive rights, and are protected by the 1991 Colombian Constitution and Colombia's adherence to international and regional human rights treaties. The Court adopted the internationally recognized reproductive rights of women and the international definition of reproductive health, recognized at the 1994 United Nations International Conference on Population and Development, and reaffirmed at the 1995 United Nations Fourth World Conference on Women. The Court invoked “the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so.” The Court explained that women therefore cannot be treated as “a reproductive instrument for the human race,” since women warrant respect as independent agents of their own destiny. They cannot be subjected to third party authorization requirements for access to reproductive health services, such as spousal/partner or parental authorization. The Court explained that treating women with dignity includes respect of their confidentiality, which would be violated, for instance, by health care providers' legal duties or discretions to report evidence of abortion to public authorities.
The rights of health care providers were also considered entitled to respect, so that medical practitioners' conscientious objection to participation in abortion procedures should be protected to the fullest possible extent. It was noted, however, that conscientious objection is a right only of human individuals, not of institutions or the state itself. Accordingly, neither health care institutions nor the state can invoke conscientious claims to deny provision of legal abortion services. Further, objecting medical practitioners cannot deny the rights of their women patients to exercise their own conscience to choose a lawful abortion, but must immediately refer them to other non-objecting medical practitioners who will perform the procedures. A duty of professionalism transcends individual conscience, so that health care providers accept, as an aspect of their professionalism, that they may have to participate in procedures to which they object. This duty is the same as that, for instance, of fire fighters who cannot object to enter burning buildings, and of police officers who may have to protect individuals and premises of institutions to whose works they object on personal grounds.
The Court was careful to ensure that it interpreted the Colombian Constitution consistently with the state's human rights treaty obligations, including its ratification of such international treaties as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the International Covenant on Civil and Political Rights. The Court noted that criminalizing health care that only women need, such as all abortion services, is a violation of the right to sexual nondiscrimination under CEDAW. High rates of maternal mortality, such as Colombia has experienced in significant part due to unsafe abortion, are a clear indication that the state is neglecting women's health care, which discriminatory neglect the state is obligated to remedy. The Court relied on CEDAW to call for the elimination of all forms of gender discrimination that stereotype women into child-bearing service roles, inhibiting their ability to make free and informed decisions as to whether and when to found a family.
The Court further invoked the Convention on the Rights of the Child, which defines a “child” as a person under 18 years of age. The Court accordingly upheld respect for parental rights, but subject to the evolving capacity of the child to make her own decisions on enjoyment of her human rights, including to health, life, bodily integrity and reproductive autonomy. The Court, therefore, declared unconstitutional a Penal Code provision that penalized abortion performed on a woman of less that 14 years of age, even with her competently provided consent.
The Court relied on the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) to explain that prevention of sexual violence against women resulting in unwanted pregnancy, and of its consequent compelled continuation of pregnancy, is the responsibility of states. This is so irrespective of whether the violence was perpetrated by public or private actors. States, at a minimum, have an obligation to mitigate the effects of sexual violence by providing abortion and other protective health services to save women from being forced to endure unwanted gestation. Accordingly, the Court held that provision of abortion services in the cases of rape and incest is a constitutional requirement. It drew support from the American Convention on Human Rights to underscore the living nature of rights and the importance of contextual interpretation of human rights treaties and constitutional norms.
This decision of the Constitutional Court of Colombia warrants wide and serious attention. It sets a new standard for jurisprudence that respects the human rights of women. Courts in Colombia and beyond will want to consider the reasoning with great care, and how the Colombian Constitutional Court applied international human rights obligations and jurisprudence to guide its reasoning.
Governments considering the use of punitive powers will need to read and reread this decision to ensure that they apply the punitive powers of the state only compatibly with the dignity of women. Legislatures, sovereign under the rule of law, will no longer be able to place disproportionate restrictions on the legally protected constitutional and human rights of women, including their reproductive rights.
This publication helpfully provides excerpts, in both Spanish and English, from the 600-page majority judgment of the Court. Women's Link Worldwide makes this landmark decision more easily accessible.
Note
Foreword reprinted with kind permission of the author. Text available at:
<http://womenslinkworldwide.org/pdf/sp_co_lat_col_decisioneng.pdf>. The full judgment (available only in Spanish) as well as many of the documents submitted to the Court, including the friends of the court (amicus curiae) briefs, are available in Spanish, and some in English at: <www.womenslinkworldwide.org>. ©2007 Women's Link Worldwide.