By Alessia Riccioli*
On February 21, 2022, the Colombian Constitutional Court ruled on the abortion issue. The C-055/22 decision took a step forward from its previous decision, namely the ruling C-355 of 2006. Both decisions took into consideration Article 122 of Law No. 599 of 2000 (Penal Code), which criminalizes consensual abortion.
In 2006, the Court sanctioned the constitutional legitimacy of this norm. However, the Court held that the abortion is not punishable if performed following the woman’s will and under the following circumstances: “(i) peligro para la vida o la salud de la mujer, (ii) grave malformación del feto que haga inviable su vida, y (iii) cuando el embarazo fuere el resultado de una conducta constitutiva de acceso carnal o acto sexual sin consentimiento, abusivo o de inseminación artificial o transferencia de óvulo fecundado no consentidas, o de incesto (see also par. 194 of the decision C-055/22). [1]
In line with the 2006 judgment, the 2022 decision did not provide for the unconstitutionality of Article 122. The Court stated the “exequibilidad condicionada” of this Article, affirming that consensual abortion shall only be punishable when performed after the twenty-fourth (24) week of gestation and, in any case, this time limit shall not apply to the aforementioned three exceptions provided by the Ruling C-355 of 2006 (par. 636).
The periodic model provided by the Court in this decision struck a balance between the “dignidad y los derechos de las mujeres gestantes” and “el bien jurídico de la vida en gestación” (page 189).
Several critical aspects of the ruling are worth mentioning: first, the respect for res iudicata, referring to the 2006 decision. The Court considered allegations different from those assessed in 2006, also noticing that the legal framework on abortion has been changing over the years (par. 190), as a consequence of different factors: (i) the Statutory Health Act (Act 1751), which was a pioneer legislative provision concerning welfare, came into force in 2015 (par. 250); (ii) after the C-355 judgment of 2006, several international bodies – including the Committee on Economic, Social and Cultural Rights, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health and the Committee on the Elimination of All Forms of Discrimination Against Women – focused their policies on the protection of women’s reproductive health (par. 251); (iii) the enactment of Law No. 1257 of 2008. According to Article 1 of this Law, the aim is the “adopción de normas que permitan garantizar para todas las mujeres una vida libre de violencia, tanto en el ámbito público como en el privado” (par. 254). Furthermore, the Cort underlined the internal changes in criminal policy toward a shift in the meaning of proportionality and the purposes of punishment (par. 252). Consistently, the Court emphasized the nature of criminal law as an ultima ratio (the reference is to the Preamble and Articles 1 and 2 of the Constitution, see pars. 258 and 261).
In the opinion of the Court, a total abortion ban violated women’s health and reproductive rights (Articles 49, 42, and 16 of the Constitution) (especially pars. 290 ss., and pars. 320 ss.) as well as their freedom of conscience, regarding their reproductive autonomy (Article 18 of the Constitution) (pars. 214 and 318). Furthermore, the Court estimated that the criminalization of abortion has a disproportionately greater impact on women in the most vulnerable contexts, such as women with irregular migrant status (Articles 13 and 93 of the Constitution, Article 1 of the American Convention on Human Rights [ACHR], and Article 9 of the Belém do Pará Convention) (see pars. 336 ss.)
In conclusion, the Court proved a constitutional tension between two conflicting principles: the protection of prenatal life and the women’s right to choose whether to carry a pregnancy. Consistently, the Court’s reasoning deemed the protection of prenatal life (which was the purpose of the abortion ban) a constitutional imperative (referring to Article 11 of the Constitution and Article 4.1 of the ConvenciónAmericana Sobre Derechos Humanos) (pars. 264 ss.). However, the Court also considered that the protection of the unborn life should be gradual, to avoid the unbalanced sacrifice of one of these constitutional values. Thus, the Court proposed an intermediate solution, outlining a time gap for abortion to be guaranteed under no restrictions and granting the exceptions described in Ruling C-355 of 2006 even in case that time limit was expired, deeming that hypothesis as extreme violations of women’s dignity. For this purpose, the Court scrutinized two main concepts: the notion of existence (linked to the notion of fertilization, par. 606) and the concept of autonomy (referring to the independence of the fetus from the mother’s womb, par. 607).
In the end, the Court also called for the implementation of public policies, including all-encompassing measures related to sexual and reproductive health and education, urging public authorities to comprehensively regulate the issue (pars. 643 – 647). According to the Court, this policy must contain, at a minimum, (i) clear disclosure of the options available to the pregnant woman during and after pregnancy, (ii) the elimination of any obstacle to the exercise of the sexual and reproductive rights recognized in this decision, (iii) the existence of instruments for the prevention of pregnancy and planning, (iv) the development of educational programs on sexual and reproductive education for all persons, (v) support measures for pregnant mothers that include adoption options, among others, and (vi) measures that guarantee the rights of those born in the circumstances of pregnant women who wish to have an abortion (par. 649).
*PhD Candidate, University of Pisa
