The Paradox of Abortion in Colombia
One of the biggest problems of global health is unsafe abortion because it is a conflict that crosses borders, exposes millions of women to high-risk medical procedures, and generates negative implications for women's sexual and reproductive health. The Ministry of Health and Social Protection in Colombia has stated that maternal mortality per 100,000 live births due to unsafe abortion is usually higher in countries with significant restrictions and lower in countries where abortion is available on-demand or under general conditions.
Abortion, being a medical procedure, is understood as a human right according to international treaties, such as i) the International Covenant on Civil and Political Rights ii) the International Covenant on Economic, Social, and Cultural Rights iii) the American Convention on Human Rights iv) the Convention on the Elimination of All Forms of Discrimination against Women, and v) the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which are understood to be part of the Colombian legislation through the block of constitutionality enshrined in Article 93 of the Political Charter.
Likewise, at the national level, the legal system enshrines the right to health in Article 49 of the Political Constitution, and the right to equality and prohibition of discrimination against women in Articles 13 and 43 of the fundamental norm. Also, the Constitutional Tribunal in Ruling C-355 of 2006 evaluated abortion as a crime, envisioned in Article 122 of the Criminal Code. In this regard, the Court declared the article in question to be enforceable, with the understanding that the crime of abortion is not committed when, with the woman's consent, the termination of the pregnancy occurs if it constitutes a danger to the life or health of the woman, there is a serious malformation of the fetus that makes its life unviable, or when the pregnancy is the result of a duly reported act constituting carnal knowledge or non-consensual, abusive, or non-consensual artificial insemination or transfer of a fertilized egg, or incest.
In Colombia, there is a paradox in which abortion is conceived as a right and a crime because although access is protected by international law and constitutional jurisprudence, it is also a deviant conduct of the Penal Code. We are at a historic moment in the country because of the lawsuit recently filed by the "Mesa por la Vida y la Salud de las Mujeres" movement to completely legalize abortion. The main arguments of the lawsuit establish that the accused norm violates i) the duties and obligations that the Constitutional Court has outlined for the guarantee of the voluntary interruption of pregnancy in the three causes authorized in decision C-355 of 2006 ii) the right to health and equality for women, in the understanding that abortion is part of the right to reproductive health iii) the right to freedom of profession because at the same time that health professionals are charged by the State with providing care in matters related to the voluntary interruption of pregnancy, they are subject to criminal penalties of imprisonment iv) the right to equality of migrant women in irregular conditions, and v) the principle of a secular State. Next, it is explained how the classification of abortion as a crime has generated a barrier in access to reproductive rights because the legal prohibition creates social stigmatization.
In the first place, the classification of abortion as a crime gives rise to women not wanting to access this medical intervention, for fear of being labeled as criminals. The aforementioned impact can be described from the Theory of Labeling exposed by Dario Melossi in 2018, which states "deviation is not a quality of the act that the person commits, but rather a consequence of the application of rules and sanctions at the hands of a third party". Hence, a subject assumes characteristics or behaviors that society, through the means of control, tells him/her that he/she possesses or performs, even if he/she does not carry them out. Therefore, abortion established as a deviant and not acceptable behavior leads to a lack of access to this medical service for fear of feeling and being perceived as criminals.
The criminalization of abortion does not only condition women's perceptions, it also affects the position of health professionals who are trained to perform this procedure. According to Lesyna et al., doctors refuse to terminate pregnancies because of the stigmatization of abortion as a crime. Thus, generating a second barrier in access to the right for those women who have decided to interrupt their pregnancy. For example, in the case of LC v. Peru, a minor who was sexually abused was denied spinal surgery (following a suicide attempt) whereas it would affect her pregnancy. Despite her mother's request for an abortion, health professionals refused for their fear of criminal prosecution.
In conclusion, women must face the fact that a human right, which should be guaranteed in all cases, ends up being a crime that prevents them from effectively enjoying their reproductive rights, and even leads them to end up with criminal proceedings. Furthermore, it puts their rights to life and health at serious risk since, faced with the barriers of the health system, women choose to carry out unsafe abortions which often result in serious physical harm. Consequently, it is possible to observe how one of the frequent causes of death for women is preventable, but not attacked by our regulatory systems.
Camila Salazar is an undergraduate law student at the University of the Andes, Colombia.