Colombia’s Abortion Decision: Abortion as a Matter of Human Rights

In May 2006, Colombia's Constitutional Court handed down a historic decision, voting 5-3 to decriminalize abortion in cases where a pregnant woman's life or health was in danger, in cases where the pregnancy was a result of rape or incest, and in cases of severe fetal malformation. The decision, which came in response to a case brought by Colombian lawyer Monica Roa, was a watershed for Colombia—one of the few countries in the world where abortion had been illegal under any circumstances up until then, despite the fact that between 350,000 and 400,000 Colombian women still sought clandestine abortions every year.

First, it grounded the decision in the norms established by a number of international and regional human rights instruments to which Colombia (among others) is accountable. And second, it placed women's human rights, with a particular emphasis on their sexual and reproductive rights, at the center of its justification for decriminalizing abortion. Which makes it, like, 80 times more progressive than Roe v. Wade, by the way. Women's Link Worldwide, the organization that supported Roa's case, has recently translated the most groundbreaking excerpts of the Court's 600-page decision into English, and posted the document on their website together with an excellent foreword by Rebecca J. Cook, a feminist and human rights scholar at the University of Toronto. Highlights follow.

1. The Court's decision recognizes the value of life, but makes an essential distinction between the "claimed legal right to life" (which belongs only to born human beings) and the "value of life" (which applies to prenatal, potential life). To wit:

"Life" and "the right to life" are different phenomena. Human life passes through various stages and manifests in various forms, which are entitled to different forms of legal protection. Even though the legal system protects the fetus, it does not grant it the same level or degree of protection it grants a human person.

So, for example, a law that prioritized the value of prenatal life over a pregnant woman's right to life (like, say, Nicaragua's new law banning therapeutic abortion), would be…what's the phrase…totally unconstitutional? (Nicaraguan and North Dakotan legislators, please proceed directly to Section 10.1: The unconstitutionality of a total prohibition of abortion.)

2. The Court's decision draws on the following hard-won, widely supported international and regional instruments: the International Conference on Population and Development Programme of Action, the Fourth World Conference on Women Platform for Action, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, ratified by 185 countries but still unratified by the United States), the Convention on the Rights of the Child (CRC, ratified by every UN member state but Somalia and the United States), the American Convention on Human Rights, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.

3. The Court's decision specifically highlights the fact that pregnancy is often used as a pretext for curtailing or suspending women's human rights, a practice that flagrantly violates:

  • The right to dignity, liberty and free development of the individual person,
  • The right to health, life, bodily integrity and reproductive autonomy, and
  • The right to equality with men.

The decision also notes that criminalizing health care that only women need, such as all abortion services, is a violation of the right to sexual nondiscrimination under CEDAW. High rates of maternal mortality are also evidence of disrespect for women's human rights, since they indicate a lack of commitment to ensuring that women don't regularly wind up dead just because they're women. Additionally, since women's right to abortion is grounded in their human rights, appointing third parties (such as spouses, partners, and parents) to mediate that decision is inappropriate (did you hear that, more than half of U.S. states and Samuel Alito?) And finally, since denying women access to safe abortion amounts to a violation of their human rights, doctors have an ethical and professional obligation to ensure that women aren't denied abortions over matter s of individual conscience. So if you as a doctor can't bring yourself to perform a safe procedure, you as a doctor are obligated to ensure that someone else will. Ain't human rights grand?

4. Finally, instead of casting abortion as a tragic-but-I-guess-under-certain-circumstances-necessary evil, the Court's decision recognizes it as a fundamental part of women's sexual and reproductive rights, which are central to gender equality, human dignity, social justice, and democracy. Listen to this:

To conclude, women's sexual and reproductive rights have finally been recognized as human rights, and, as such, they have become part of constitutional rights, which are the fundamental basis of all democratic states. Sexual and reproductive rights also emerge from the recognition that equality in general, gender equality in particular, and the emancipation of women and girls are essential to society. Protecting sexual and reproductive rights is a direct path to promoting the dignity of all human beings and a step forward in humanity's advancement towards social justice.

Right on. Read the complete English highlights here (PDF). You can also download the full decision (all 600 pages of it) in Spanish on the Women's Link Worldwide website. Flights to Colombia can be booked here.

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