Abortion in Colombia
The 1890 Penal Code, in article 640, allowed for abortion when it was absolutely necessary to save the mother's life, but stated that the law did not recommend such means, which were "generally condemned" by the Catholic Church, the official religion at the time.
Furthermore, it opined that "the life of the unborn embodies a fundamental value, for the hope of its existence as a person, and its apparent helplessness requires special attention from the State.
Article 122 of the Penal Code punished women who self-induced or consented to someone else inducing her abortion to imprisonment for a period of one to three years, increased to a term of 16 to 54 months by law 890 of 2004.
Article 124, finally, allowed for attenuating circumstances: the prescribed penalty for abortion would be reduced by three quarters when the pregnancy was the result of rape or non-consensual artificial insemination.
[6] In 2006, Colombia decriminalized abortion in cases where "a pregnancy threatens a woman’s physical, mental, emotional, or social health, involves severe fetal malformations, or is the result of rape, incest, or unwanted insemination."
A 2006 court decision that also allowed doctors to refuse to perform abortions based on personal beliefs stated that this was previously only permitted in cases of rape, if the mother's health was in danger, or if the fetus had an untreatable malformation.
[18] Mónica Roa's brief claimed that the ban on abortion violated a woman's constitutional right to the free development of her personality (libre desarrollo de la personalidad) and autonomy, because the State was preventing her from deciding freely on issues which pertained solely to her.
[3] Finally, Roa challenged the entirety of article 124, because merely initiating criminal proceedings for an abortion in the face of sexual violence was violation of a woman's dignity, freedom and autonomy.
[3] Other constitutional arguments presented in favour of decriminalization included the secularism of the State, gender equality, human dignity, the right to intimacy and the freedom of conscience.
[3] In its intervention before the Court, the Ombudsman (Defensor del Pueblo), an autonomous constitutional control organization, supported the legal challenge against the ban on abortion.
Like other contributors, the Ombudsman claimed that the law was based on a retrograde view of women as "merely biological", ignoring modern constitutional provisions for gender equality.
[3] The Ministry of Social Protection primarily mentioned the public health risks associated with clandestine abortions to support its opinion that restrictive laws like those in Colombia were not efficient in any way in reducing unwanted pregnancies.
The Episcopal Conference of Colombia opposed the decriminalization of abortion, arguing that the impugned articles of the Penal Code protected the life, health and integrity of the unborn but also of the mother.
[3] The Inspector General of Colombia, Edgardo Maya Villazón, asked the Court to decriminalize abortion in the cases of maternal health, life-threatening foetal defects and conception without the woman's consent (in legal terms, ruling article 122 conditionally constitutional).
[3] The Inspector General concluded that criminalizing abortion in the aforementioned cases constituted an unreasonable and disproportionate sanction, interfering with a woman's fundamental rights.
The majority opinion examined several constitutional and legal issues pertaining to life and fundamental rights, including:[3][11] Concretely, the Court ruled that the total ban on abortion in Article 122 of the Penal Code was unconstitutional.
Therefore, the ban on abortion was therefore unconstitutional, as it completely ignored the dignity of the mother and reduced her to "a mere receptacle of unborn life, lacking rights or constitutionally relevant interests meriting protection.
[21] On March 2, 2020, the Constitutional Court of Colombia declared itself inhibited and incompetent to issue a ruling regarding a lawsuit against the current decree that authorizes abortion only in three specific cases and that the lives of the mother and baby are endangered.
