On May 10th 2006, the Colombian Constitutional Court ruled 5-3 in favor of the decriminalization of abortion. The groundbreaking decision guaranteed a woman’s exemption from prosecution under three conditions:
(1) pregnancy by rape, incest or unwanted insemination
(2) severe fetal malformation or
(3) risks to life and health
Prior to 2006, Colombia had stood in solidarity with El Salvador and Chile – all of whom were adamant on reinforcing the blanket ban on abortion. Moreover, the penal code merely subverted abortion into clandestine spheres, with the government perpetuating a ‘double discourse’ on the matter by condemning it in public but allowing it in private. Such legal laxity created a public health crisis, with an annual number of 300,000 illicit abortions performed by unregulated providers, contributing to a third of all maternal deaths. As such, the judicial ruling came as a huge success to human rights activists – who for several years had been engaged in a fervent pursuit for social justice in the wake of the country’s harsh abortion laws infringing on women’s reproductive health. The trigger for the legal revision, came in April 2005, when the case (C-355) was brought to Court by attorney Monica Roa on part of the international organization Women’s Link Worldwide.
Despite the increased presence of human rights lobbies in Colombian politics, there had not been any substantial changes to Colombia’s Penal Code. The legal stalemate can mostly be attributed to the mobilization of the Catholic church in crucial policy and legislative areas. Over the years, the Church cultivated a vast network within the state administration and institutions, which granted it an influential oversight on any political or legal developments law. In addition, it subsidized many of the pro-life movements in disseminating their cause amongst the local communities. By casting the criminalization of abortion as both a religious duty and a state’s legal obligation, the Catholic Church reframed the political narrative into a deeply personal narrative. Hence, the boundaries between right and wrong were demarcated to fit overridingly patriarchal terms. Addressing the topic of abortion in such a discourse, becomes especially relevant if put in context of whom the ban affected – namely the urban poor and rural women. Considering the state’s legal laxity on the matter, the middle and upper class could easily access abortion without losing religious face – in contrast to the poor, who underwent incredibly dangerous and life-threatening medical procedures.
In order to challenge the Constitutional Court, Women’s Link convened in a collective effort on 14 March 2005 and developed a High Impact Litigation Strategy (LAICIA), which was separated into three focal points: creating a legal case for gender equality, securing national, regional and international alliances and a media-based public outreach scheme. Women’s Link opted for a constitutional case, over filing for a criminal complaint to the National Assembly. Even amongst women’s rights activists, this marked an unprecedented move, considering that most ‘rights activist [did] not use the courts as a means for advocacy’. By shifting abortion away from its previously politicized agenda, Women’s Link litigation strategy thus secured the case a legitimate site, from which to bypass the national government’s authority
In part, the triumph of Women’s Link was based on a favorable legal climate. First, the Constitutional Committee, which approved the application consisted of several liberal-minded judges who were sympathetic to the liberalization of abortion. Second, the official revision of the Constitution of Rights (1991) in 2005 re-emphasized Colombia’s commitments to international law and human rights treaties. Finally, the Court’s case history demonstrated a clear precedent of the Court using human rights law to resolve policy disputes. According to Bocse’s (2011) reasoning, the combination of the aforementioned factors, presented a political opportunity structure open to the claims set forth by the interest group.
Drawing on the Constitution of Rights (1991), Women’s Link reaffirmed Colombia’s commitments as a secular institution towards upholding pluralist values and the fundamental rights of the individual. The case pointed out the tension in-between the criminalization of abortion and the Constitution’s existing articles. These included: the right to dignity (Constitutional Preamble, Article 1), the right to bodily integrity (Article 12), the right to equality (Article 13), the right to free, individual development (Article 16), the right to reproductive autonomy (Article 42) and the right to health (Article 49). Furthermore, Article 93 of the Constitution of Rights included Colombia’s obligations under international human rights law, established in multi-lateral treaties such as CEDAW (ratified in 1982), the Cairo Consensus (1994), and the Fourth World Conference on Women (1995). The case argued that the government’s blanket ban was an infringement of a woman’s equal right to life, health, reproductive self-determination, and privacy. Furthermore, Women’s Link noted the Human Rights Committee’s authoritative ruling in K.L v. Peru as an exemplary regional precedent for the Court to follow.
Women’s Link communication strategy untangled a narrative previously monopolized by religious actors and framed it as an issue of public health and equal rights. Aiding in the fight for public opinion, were the transnational actors network alliances with popular media and newspapers. For example, in between February and May 2006 alone, El Tiempo featured 150 articles, editorials and opinion pieces discussing the development of C-355. The liberal newspaper’s circulation of “real-life stories”, which described the horrors of women’s experiences under the strict ban, took an emotional toll on its audiences and increased public sympathy. In particular, the story of the 34-year-old mother of four, Marta Zulay Gonzalez, also made headlines in Revista Semana, Hoy Diario and El Universal. At the time, Marta was suffering under acute ovarian cancer and was in desperate need of chemotherapy and radiation treatment. When she found out she was three weeks pregnant, she pleaded with a public hospital for her right to abortion, which was denied. Monica Roa mentioned Marta’s case, as a blatant example of the need for legal and accessible abortion to protect a woman’s health and the well-being of her family. With the combined advocacy efforts of Women’s Link and popular newspapers, Marta’s story evolved into a national symbol of the state’s duty to decriminalize abortion under certain circumstances.
Yet, despite the liberalization of the blanket ban, clandestine abortion rates remain at large over a decade later. Although the country’s constitutional and legal protections for women’s rights are amongst the strongest in the region, women continue to face many obstacles to legal abortion, indicating a practical gap in between the law and its implementation. Public health providers have performed 50,000 legal abortions since 2006, which pales in comparison to the yearly estimates of 400,000 women who suffer via illegal abortions. Although the Ministry of Social Protection issued a series of guidelines for the population and public health services to follow, there continues to be a lack of education on the ethical, legal and medical requirements of the Court’s ruling. Additionally, inadequate public knowledge on the correct application of abortion methods, primarily misoprostol, has led to high rates of complications at higher-level health facilities. Half of the women residing in rural areas are unaware of misoprostol’s existence and continue to perform hazardous self-induced abortions. The medical treatment of these complications costs the government large sums of money: approximately $14.4 million invested into by post-abortion care. However, there continues to exist a lack of political incentive amongst government officials to support policies that mandate institutional improvements to the provision of and access to contraceptive care and legal abortion services.
On average, only 11% of all public health institutions offer treatment. Given Colombia’s unstable conditions of inter-communal violence and poverty, travelling from rural villages to larger cities is not only costly, but also a highly dangerous endeavor, especially for a pregnant woman. Many women fall victim to rape, sexual assault or other attacks in transit. A combination of such violent prospects and lack of financial resources disincentivize women to leave their local communities in the first place. Upon arrival at health care centers, the protracted bureaucratic process involved in acquiring a legal termination of pregnancy unnecessarily delays abortion services and is extremely intimidating for women. In between May 2006 and April 2008, La Mesa por La Vida documented a series of cases, in which health care professionals issued unjustified requests for medical or legal referrals. On top of these demands, women were urged and even pressured to continue their pregnancy, causing psychological strain.
However, it is not only the managerial inefficiencies, which are curtailing women’s reproductive rights, but the verdict itself. At the time, the Court declared that it did not have the professional expertise to rule over the technicalities of abortion, and hence left such decisions to health care professionals. Consequently, the Court’s ruling contains a crucial loophole, namely, a doctor’s right to ‘conscientious objection’, which is routinely appropriated by health care professionals as a means to deny women the right to termination. Furthermore, the absence of scientifically demarcated instructions in the judgement created confusion amongst doctors who operate on a case-by-case basis. For example, cases containing patients with mental health or rape are particularly susceptible to rejection. Most doctors will only factor in the physical component of a women’s health or when there is a clear threat to her life. The Court failed to legally resolve the ethical tension between a women’s and medical autonomy. As such, the lack of clarity in the verdict renders women vulnerable to the personal prejudices of individual doctors.
Consequently, the NGO’s advocacy network must continue its agenda-setting in Colombia’s social and political landscape. This includes increased public awareness, facilitating the capacity building and training of local groups and reinforcing international accountability measures. First, increased efforts must be directed towards ensuring that women, especially in rural areas, are informed on the availability of abortion services and their respective legal rights. Second, attention should be directed towards the legal mobilization of national actors, which aid in the proliferation of local-level knowledge of human rights and ensure no woman is unrightfully exempted from the treatment. Third, Women’s Link must continue to wield its credibility within the international community to cast a spotlight on government impunity. This includes remitting the contemporary infringements on gender rights to International Human Rights Committees, which in turn, can pressure the Colombian state to uphold its treaty obligations. Simultaneously, the framing of abortion as part of Colombia’s value structure should run parallel to Women’s Link agenda-setting, in order to combat conservative biases and secure social cohesion on the issue. Thus, despite Women’s Link having been able to provide the legal framework for change, there still exists a practical gap between women’s rights and national recognition of the gender policy reform.
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