The [Partial] Decriminalization of Abortion in Colombia, 2000s – Now

By E.G.S.

What’s the situation on abortion laws in Colombia?

Before 2006, Colombia was one of eight Latin American countries that restricted abortion under all circumstances. However, A 2006 Constitutional Court ruling authorized the practice of abortion under any of the following three circumstances:

  1. If the pregnancy poses a risk to the health or life of the woman;*
  2. If there is fetal malformation incompatible with life out of the womb; and
  3. If the pregnancy is the result of rape, incest, or nonconsensual artificial insemination/transfer of eggs.

*This includes mental and emotional health.

Abortion laws in Latin American, Center for Reproductive Rights World’s Abortion Laws Map 2016

So how exactly did this happen in a relatively socially conservative country? Colombia has a rich feminist history and several attempts were made in the 70’s-90’s to change abortion laws. But the real change happened with…

High Impact Litigation in Colombia for the Unconstitutionality of Abortion

Summer of 2004 – May 2006

In April 2005, several individuals associated with La Mesa por la Vida y la Salud de las Mujeres, a coalition of women and organizations fighting for reproductive rights, led by lawyer Mónica Roa of Women’s Link Worldwide, an international human rights non-profit organization, challenged the constitutionality of abortion-related articles in the Penal Code to the Colombian Court.

They utilized three tactics:

  • Legal strategies
  • Alliances (primarly thru La Mesa)
  • Public communications

Their brief claimed that Colombia’s complete ban on abortion violated several constitutional rights:

unnamed
“Sexual and Reproductive Rights” Author’s photo.
  • The right to the free development of a woman’s personality (libre desarrollo de la personalidad) & autonomy
  • The right to equality by criminalizing a medical practice only needed by women
  • Rights to health & life
  • A young girl’s right to autonomy, because it subjected those who practiced abortions on minors <14 to a higher jail sentence.

Roa and colleagues utilized several commentaries from international human rights documents, which are of value and legally binding in Colombian constitutional law.1 These efforts resulted in decision C-355/06, ruling abortion legal under the three circumstances mentioned above.

“[T]he total prohibition of abortion in all cases is a blatantly disproportionate measure as it infringes upon the rights of the pregnant woman, protected by the Constitution of 1991 as well as by the international human rights treaties that are part of the Constitutional Bundle.”

-EXCERPT OF THE CONSTITUTIONAL COURT’S RULING THAT LIBERALIZED ABORTION IN COLOMBIA

This was a really big deal. 

Decision C-355/06 was one of the first judicial decisions in the world to defend abortion rights on a platform of equality and the first by a constitutional court to rule on the constitutionality of abortion within a human rights framework.After the  C-355/06 ruling, Women’s Link Worldwide initiated a new project, “Ensuring Reproductive Rights in Colombia: From Constitutional Court success to reality,” in order to monitor implementation.

But…Siempre hay un “pero”…

What are some of the barriers to implementation?

Despite the ruling, 95-99% of all abortions in Colombia are clandestine and not medically supervised.3 One-third of all Colombian women who have clandestine abortions develop complications requiring medical treatment;4 resulting in 93,000 treated women annually for post-abortion complications.3

Some for reasons for high rates of clandestine abortion include:

  • Women and clinicians not knowing about new abortion laws
  • Barriers in access (distance to a provider, costs, confidentiality, time, issues related to the armed conflict)
  • Conscientious objection
  • Violations of the ruling (e.g. physicians requesting unnecessary documents)
  • Increased use of over-the-counter medications for self-inducing abortion
  • Lack of training in performing abortion among clinicians

 

What is conscientious objection and why does it matter?

Conscientious objection (CO) is the act of being exempted from providing or participating in abortion care based on religious, moral or philosophical grounds. In Colombia, CO is a significant barrier for women who wish to access their constitutional right to abortion.5 Providers exercising CO are required to refer women to a willing provider. Little is known about why individual providers invoke CO and how common CO is in Colombia. A study in 2009 conducted by a Laura Gil Urbano, a gynecologist in Bogotá, documented the beliefs and attitudes regarding abortion among 211 obstetricians/gynecologists (OB/GYNs).

Another study recently conducted by a few neat medical and public health scientists at Emory University aimed to understand why providers might invoke CO.7 They found that there were several different kinds of objectors:

  • Radical objectors refuse or are very reluctant to refer; object to most forms of birth control.
  • Moderate objectors usually or always refer patients and firmly support and promote birth control as a means to prevent abortion.
  • Partial objectors are those who object:
    • in cases of advanced pregnancy (14 weeks and 22 weeks were independently given as the cut-points for “advanced”).
    • depending on the circumstances of the pregnancy, e.g. only provides abortion when the fetus is non-viable.

Some of themes that emerged from their interviews included:

  • lack of knowledge regarding the legality of abortion;
  • diverse interpretations of ethical, legal, and medical requirements as defined by the Court ruling;
  • medical education which instructed that abortion is not safe for women,
  • religious conviction regarding terminating the life of an unborn fetus,
  • and ethical concern because of beliefs that abortion is detrimental to a woman’s mental health.

Interviews with non-physician stakeholders such as local bioethicists, women’s rights activists, attorneys, and clinic administrators revealed other issues; such as:

  • providers hiding their objection from the hospital, and then refusing services upon a patient arrival.
  • Another complaint among stakeholders was that some providers object at a
public hospital, but will perform the procedure at a
 private clinic, where they receive more compensation.

What is being done to address these barriers?

  • La Mesa por la Vida y la Salud de las Mujeres
  • Ministry of Social Protection
    • Responsible for investigating offending providers and hospitals and imposing sanctions when violations occur.

Between 2006-2009, several additions to C-355 regarding CO have been enacted in order to prevent misuse and abuse of CO.8 These include:

  1. Only personnel directly related to abortion provision can exercise CO, excluding nurses.
  2. CO has to be written, explaining the religious reasons.
  3. Hospitals whose physicians exercise CO must have available and timely non-objectors.
  4. Whenever abortion is refused, a health authority liable to pay compensation for the negligence can sue physicians seeking compensation who did not follow CO policies.
  5. Judges cannot exercise CO by issuing decisions to limit abortions.
  6. Women denied abortion services per physician CO must be immediately referred to physicians willing and able to provide such services.
  7. Physicians or governmental designated committees must revise the CO request’s legitimacy.
  8. Institutional, collective and state CO is also forbidden. An institution must have some personnel that are not objectors.
  9. Similarly, public officers cannot use CO in refusing to perform duties.

As women’s health advocates we celebrate the advanced and inspiring regulations on paper8, and powerful actions by many different actors on this topic; however multiple gaps and barriers persist in ensuring lawful access to safe abortion to Colombian women, especially in non-urban and high-risk areas.5,9

A video by La Fundación Oriéntame, a Colombian organization that provides abortion and other reproductive health services to women.

 

The author would like to thank Johanna Cepeda for her assistance in creating this post. 

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References

  1. Convenio 405 de 2006 Ministerio de la Protección Social, Universidad Nacional de Colombia. IMPLICACIONES ÉTICAS, JURÍDICAS Y MÉDICAS DE LA SENTENCIA C-355 DE LA CORTE CONSTITUCIONAL: Un avance para el ejercicio de los derechos humanos, sexuales y reproductivos de las colombia. Bogotá, DC; 2007.
  2. Ruibal A. Movement and counter-movement: a history of abortion law reform and the backlash in Colombia 2006-2014. Reprod Health Matters. 2014;22(44):42–51.
  3. Prada E, Singh S, Remez L, Villareal C. Embarazo no deseado y aborto inducido en Colombia: causas y consecuencias. Nueva York: Guttmacher Institute; 2011.
  4. Moloney A. Unsafe abortions common in Colombia despite law change. Lancet. 2009;373(9663):534. doi:10.1016/S0140-6736(09)60185-9.
  5. Dalén A. La implementación de la depenalización parcial del aborto en Colombia. Bogotá: Centro de Estudios de Derecho, Justicia y Sociedad, Dejusticia. Bogotá, DC: Centro de Estudios de Derecho, Justicia y Sociedad, Dejusticia; 2013.
  6. El Centro Latinoamericano en Sexualidad y Derechos Humanos. Colombia: Los gineco-obstetras y el aborto. Em destaque – Notícias. 2009. Available at: http://www.clam.org.br/publique/cgi/cgilua.exe/sys/start.htm?infoid=5635&sid=51. Accessed January 30, 2016.
  7. Fink L, Stanhope K, Brack C, Richardson K, Bernal O. Conscientious Objection to Abortion Provision in Bogotá, Colombia: Religion, Respect, and Referral. Popul Assoc Am 2015 Annu Meet. 2015:1–5. Available at: http://paa2015.princeton.edu/abstracts/152582.
  8. Cabal L, Olaya MA, Robledo VM. Striking a Balance: Conscientious Objection and Reproductive Health Care from the Colombian Perspective. Heal Hum Rights J. 2014;16(2):73–83.
  9. Amado ED, Calderón García MC, Cristancho KR, Salas EP, Hauzeur EB. Obstacles and challenges following the partial decriminalisation of abortion in Colombia. Reprod Health Matters. 2010;18(36):118–126.

 

 

 

 

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