For the first time since 2006, when abortion was decriminalized in Colombia under three circumstances, a governmental health authority fined a hospital that refused to perform a legal termination.
The Secretaria Distrital de Salud fined the Jesuit hospital San Ignacio, located in the Colombian capital, which in 2008 denied an abortion to a woman whose fetus had a confirmed diagnosis of having severe malformations.
Two years ago, the Constitutional Courts issued the sentence C-355, which states that abortion is not a crime under three circumstances: When the life or health (physical or mental) of the woman is in danger, when pregnancy is a result of rape or incest or when grave fetal malformations make life outside the uterus unviable.
In 2008, Migdoly Yolima Bernal, 27, and five months pregnant, requested an abortion from the San Ignacio Hospital, a teaching hospital of the Pontificia Universidad Javeriana, a Jesuit private university.
Her fetus was suffering of severe hydrocephalus, asymmetric growth and grave cardiac pathology.
Despite this diagnosis, the hospital objected to the request. Its manager stated the San Ignacio Hospital does not practice abortions due to its religious principles.
However the higher governmental health body of Bogotá sanctioned the medical center with a fine of US $5,170 because according to the legislation, a physician can argue conscientious objection, but a hospital cannot. In this case, the hospital has the obligation of finding another doctor who was willing to practice the abortion. In the extreme case that all doctors oppose, the hospital has to refer the woman to another health institution that performs the necessary procedures.
Bernal looked for another hospital to perform the termination. In addition, she submitted a legal measure which resulted in the governmental sanction.
His husband, Manuel Rodríguez, celebrated the decision of the health authority. "For us, this sanction will help women who have such kind of pregnancies complications because they won’t look for clandestine abortions. "They will know that there is a legislation that protect them, so they won’t put their lives in risk."
According to Monica Roa, Colombian representative of Women’s Link Worldwide (WLW), the sanction was kept in strict confidence, but the health authority was compelled to disclose it as a result of a legal measure submitted by WLW.
"This is very important because it is the first sanction issued by the Secretaría Distrital de Salud, and it is a sanction against the abuse of institutional conscientious objection, which is not valid, because the conscientious objection have to be personal," stated Roa.
WLW played an important role in the decriminalization of abortion. In fact, the Court’s sentence is the consequence of the lawsuit submitted by WLW through Roa.
The hospital announced that it will appeal against the sanction. However, success is unlikely because the regulations issued by the Colombian Ministry of Social to implement the sentence follow the guidelines of the World Health Organization.
"The hospitals of religious communities have adopted the conscientious objection as a pretext to not observe the sentence and that is why this sanction is very important," Sandra Mazo, member of the Catholics for Choice-Colombia, said.
In fact, there is a lot of work needed in order to ensure that a woman’s right to access abortion services be respected, guaranteed and promoted so that she can make an informed decision on whether she wants to end her pregnancy, but some progress has been done. At least no woman has died for the impossibility of getting a legal abortion since the regulation of the Court’s sentence, Roa said.
Such sanction sets a precedent that will probably generate a reduction of barriers to access this right among the public and private health care centers.
To perform abortions in the three cases, "is not a free choice, it is a duty, and its rejection is not only a lack of observation of a judicial order but also a violation of women rights," stated Angela Benedetti, member of the Concejo de Bogota, the capital legislation body.