COLOMBIA – Decision on decriminalisation of abortion in the Constitutional Court scuppered

Unsafe abortions are the fourth leading cause of maternal mortality in Colombia.

The Causa Justa movement, which brings together a growing number of feminist and women’s rights organisations in Colombia, brought a case to the Court to decriminalise abortion more than a year ago. The Constitutional Court was set to issue its ruling on the case on 19 November 2021, the deadline set for the decision, but an underhanded “procedure” against one of the judges has delayed everything.

On Thursday night, 18 November, one day away from a ruling that was expected to be historic, the debate was pushed into legal limbo, making it impossible to predict when there will be a verdict. This is because a decision on whether one of the nine judges who sits on the Court is allowed to participate in the decision is impeding its progress.

What happened? A week ago, the Court ruled against removing former President Álvaro Uribe from an indictment for a case of bribery of witnesses. In an interview with Semana magazine, Judge Alejandro Linares, a member of the Court, spoke about the case of the President, the work of the judges and the pending vote on abortion. He said: “… next week we have another big chicharrón [difficult problem], which is the issue of abortion. On this issue you will also hear multiple opinions, from people very close to you, like your mother who tells you that it is crazy to decriminalise abortion, or you have your children who will tell you: ‘Hey, dad, I agree with you on the decriminalisation of abortion!’, or ‘I do not agree with you’. Each person, let’s say, has a very personal vision of what the Court’s ruling should be.”

After the Judge’s remarks were published, a lawyer demanded his recusal from hearing the case for revealing how he was going to vote, although it was already known that Linares was in favour of decriminalisation based on previous votes. In his own defence, Linares made a presentation before his fellow judges as to why he should not be removed from the case. He maintained that there was no reason to remove him because he did not express his opinion in Semana, beyond the fact that his opinion was already known. On 18 November, the remaining eight judges on the Court decided to debate and vote on whether or not Judge Linares should be allowed to vote on the 19th, instead of entering into the substantive debate on the case in front of them.

The vote was a four-to-four tie, which apparently forces further legal proceedings of uncertain timing. The Court will have to call in another judge, which would tip the balance in favour or against Judge Linares. The glaring biases and their consequences are perhaps too obvious to have to spell them out. In the meantime, the decision on whether or not to eliminate the crime of abortion from the Penal Code of Colombia remains in limbo. How convenient.

Never before has Colombia been so close to making sexual and reproductive rights history. Among the plaintiffs, more than 90 organisations integrated in the Causa Justa movement, there was concern in the weeks leading up to the date that a single vote could swing the ruling. The spokeswomen for Causa Justa made a public statement in which they said there is no legal reason to remove Judge Linares.

If there is a ruling in favour of decriminalisation, Colombia would become the first Latin American country to eliminate the crime from its penal code. Currently, every year some 400 Colombian women are prosecuted for having an abortion, mainly poor women in rural areas.

Abortion is currently legal on three grounds – rape, fetal malformation incompatible with life, or risk to the physical or mental health of the woman – approved in 2006. This coexists with the crime of abortion on all other grounds. In practice, the continuing possibility of a conviction has limited access to safe and legal abortion, especially among the most vulnerable women. The fear of being denounced separates thousands of women from legal clinics, even when they are within their rights.

Causa Justa are still placing their trust in the Court, as they did 15 years ago, when the right to abortion on the three grounds was achieved through the Court. The judges have asked the Congress on numerous occasions over the years to take the reins of the debate and assume their responsibility to legislate on this issue, but successive governments have so far avoided taking on topics that generate controversy in society.

Colombian society is considered religious – 97% of citizens according to a 2017 survey – and the weight of the Catholic and Evangelical churches, who are against the decriminalisation of abortion, is still powerful. However, the growing feminist movement in the country, as in the rest of the Latin American region over the last decades, has led a change of mentality in matters of equality and reproductive rights. Today, only 20% of Colombians think a woman who has an abortion should be sent to jail.

Causa Justa sees this delay in the decision as just one more obstacle in the process, but warns that it has nothing to do with the substantive debate on decriminalisation, but is only a “discussion on a formal procedure”. “We are not going to give up and we will take advantage of this juncture to continue the conversation about the importance of advancing the decriminalisation of abortion, encouraging many more people to join this cause and this movement. We continue to stand with the strength and conviction that the Constitutional Court will make a decision that does justice to women,” they said in a statement.

SOURCES: El País, by Inés Santaeulalia, 19 November 2021 ; Euronews, with AFP, AP, + PHOTO by Fernando Vergara /AP, 19 November 2021