Abortion in Colombia is freely available on request up to the 24th week of pregnancy, due to a ruling by the Constitutional Court on February 21, 2022. [1] Later in pregnancy, it is only allowed in cases of risk of death to the pregnant woman, fetal malformation, or rape, according to a Constitutional Court ruling in 2006. [2]
The 1837 and 1936 penal legislation authorized therapeutic abortion while banning all other forms of abortion, regardless of whether the abortion was consented to or not. The 1890 Penal Code, in article 640, allowed for abortion when it was absolutely necessary to save the mother's life, but stated that the law did not recommend such means, which were "generally condemned" by the Catholic Church, the official religion at the time. [3] In all other cases, a third party who attempted to abort a fetus without the woman's consent faced three to six years' imprisonment (five to ten years if the abortion was successful) or one to three years imprisonment if the woman consented (four to eight years if the abortion was successful). [4] If a medical professional, midwife, or apothecary was found guilty of the above crimes, the sentence would be increased by six months to a year. The law also provided for reduced sentences, of 3–6 months (5–10 months if the abortion was successful), in the case of "honest women of good reputation" who received an abortion to "conceal their frailty" (aborto honoris causa). [3]
A very conservative 1922 law to reform the penal code would have eliminated therapeutic abortion and punished women who sought an abortion but maintained the aborto honoris causa, but the law never entered into force. The aborto honoris causa, a legal concept inherited from Spain and Italy, was based on the opinion that a single mother had lost her honour. [4] The 1936 Penal Code differentiated between consented abortion (one to four years imprisonment for the woman and practitioner) and abortion not consented to (one to six years for the practitioner), maintaining provisions for a reduced sentence (reduced by one-half to two-thirds) or full pardon for an abortion to save one's honour or that of the mother, sister, woman, her descendants, or adopted girl. [3] [4]
The 1980 Penal Code, in articles 343 to 345, removed the aborto honoris causa and adopted penalties and attenuating circumstances which would be largely retained by the current penal code, adopted in 2000.
Decree 100 of 1980. (Penal Code)
"ARTICLE 343. ABORTION. The woman who causes her abortion or allows another to cause it, shall be in prison for one to three years.
The same sanction shall be subject to who, with the consent of the woman, performs the act provided for in the preceding paragraph."
The constitutionality of Article 343 of the 1980 Penal Code was challenged to the Constitutional Court in 1994, which ruled in favour of the article criminalizing abortion in sentence C-133 of March 17, 1994. The majority opinion of the court contended the 1991 Constitution, which recognizes life as a fundamental right (in article 11) and cites it as one of the founding principles in the constitutional preamble and article 2, recognized the "primacy and inviolability of life", excluding any possibility for abortion and allowing the legislator to penalize such acts. Furthermore, it opined that "the life of the unborn embodies a fundamental value, for the hope of its existence as a person, and its apparent helplessness requires special attention from the State." [5] Thus, Colombia's abortion legislation was constitutional under the State's obligation to protect the life of "all persons", which, at the time, the Court claimed "obviously" protected life during its formation and development given that these stages were condition for the viability of birth, the origin of the legal existence of a person. [5] In addition, the Court said, if the Constitution gives couples the right to decide their number of children, this right could only be exercised prior to conception since conception creates a being which is existentially distinct from the mother. [5]
Abortion was legally regulated by articles 122 through 124 of the Colombian Penal Code (law 599 of 2000). Article 122 of the Penal Code punished women who self-induced or consented to someone else inducing her abortion to imprisonment for a period of one to three years, increased to a term of 16 to 54 months by law 890 of 2004. [6] Article 123 punished those who practised an abortion without the woman's consent or on a girl under fourteen years of age to a period of imprisonment of 4 to 10 years, increased to 64 to 180 months by the 2004 law. Article 124, finally, allowed for attenuating circumstances: the prescribed penalty for abortion would be reduced by three quarters when the pregnancy was the result of rape or non-consensual artificial insemination. [6]
In November 2015, Attorney General Eduardo Montealegre announced that he would send a bill to Congress legalizing abortion on request in the first 12 weeks of pregnancy. The Minister of Health, Alejandro Gaviria, supports legalizing abortion but said that Montealegre's bill was not the most suitable mechanism to do so, claiming instead that the obstacles are not legal but rather disinformation and cultural factors. [7] [8]
On March 14, 2020 the Colombian Constitutional Court issued a decision regarding a claim received against the current law which requested a complete ban on abortions. The claim argued that abortion was unconstitutional and limited the rights of the unborn. [9] [10] The Court ruled against banning all abortions, upholding the current requirements for the procedure. [11] [12]
Abortion in Colombia has been historically severely restricted, with the laws being loosened in 2006 and 2009 (before 2006 Colombia was one of few countries in the world to have a complete ban on abortion); [13] and in 2022 abortion on request was legalized to the 24th week of pregnancy, by a ruling of the Constitutional Court on February 21, 2022. [1] Up until that point, women who had abortions in this largely Catholic nation faced sentences ranging from 16 to 54 months in prison. According to this decision, women may obtain an abortion up until the sixth month of pregnancy for any reason. A 2006 court decision that also allowed doctors to refuse to perform abortions based on personal beliefs stated that this was previously only permitted in cases of rape, if the mother's health was in danger, or if the fetus had an untreatable malformation. [14]
In 2006, the case of Pereira woman Martha Sulay González brought national attention to the issue of abortion in the country. González, already a mother of three, was diagnosed with cervical cancer while pregnant with her fourth child in 2004 (despite prior tubal ligation). [15] Her requests for chemotherapy and radiotherapy were denied, as they would entail the termination of her pregnancy, which was illegal. Her doctors said that they decided to continue her pregnancy because, although medical literature indicated that in such cases the pregnancy should be ignored and radiotherapy started, therapeutic abortion is illegal in Colombia and they would be committing a crime. Her cancer metastasized in 2006. [16] [17] However, experts in medical law argued that an abortion in her case would not have been penalized, as one would not be seeking the death of the fetus but rather to save the mother's life. [15]
Martha Sulay González, supported by local and national groups, continued to demand the decriminalization of abortion in Colombia. Beginning in April 2005, several lawyers, led by Mónica Roa of the Women's Link Worldwide NGO, challenged the constitutionality of the abortion-related articles of the Penal Code to the Constitutional Court. The court consolidated three separate challenges into a single case. [17] Mónica Roa's brief claimed that the ban on abortion violated a woman's constitutional right to the free development of her personality (libre desarrollo de la personalidad) and autonomy, because the State was preventing her from deciding freely on issues which pertained solely to her. She further suggested that the legislation was disproportional, violated a woman's right to equality (by criminalizing a medical practice only needed by women, while the denial of an abortion was a clear example of discrimination against women violating their constitutional rights to health and life). [3] Besides article 122 of the Penal Code, Roa also challenged the phrase in article 123 which subjected those who practised abortions on minors under fourteen to a higher prison sentence, as she said it violated a young girl's constitutionally-recognized autonomy. [3] Finally, Roa challenged the entirety of article 124, because merely initiating criminal proceedings for an abortion in the face of sexual violence was violation of a woman's dignity, freedom and autonomy. [3]
Supporting her arguments, Roa also argued that clandestine abortions threatened a woman's life and cited several opinions from international organizations and international human rights instruments (which are of constitutional value and legally binding in Colombian constitutional law). [3] Other constitutional arguments presented in favour of decriminalization included the secularism of the State, gender equality, human dignity, the right to intimacy and the freedom of conscience. [3]
Religious opposition to abortion was particularly intense during the court challenge, particularly from the Catholic Church and Opus Dei, as well their allies in Congress. [17] During the 2006 presidential campaign, incumbent President Álvaro Uribe said that he opposed abortion, but most of his rivals, including eventual second-place finisher Carlos Gaviria, a former Constitutional Court magistrate, supported abortion rights and the legal challenge to the Penal Code. [17]
The Colombian Institute of Family Welfare (ICBF) opposed abortion as a family planning measure, but gave a favourable opinion to the decriminalization of abortion in certain cases. [3] In its intervention before the Court, the Ombudsman (Defensor del Pueblo), an autonomous constitutional control organization, supported the legal challenge against the ban on abortion. Like other contributors, the Ombudsman claimed that the law was based on a retrograde view of women as "merely biological", ignoring modern constitutional provisions for gender equality. [3] The Ministry of Social Protection primarily mentioned the public health risks associated with clandestine abortions to support its opinion that restrictive laws like those in Colombia were not efficient in any way in reducing unwanted pregnancies.
The Episcopal Conference of Colombia opposed the decriminalization of abortion, arguing that the impugned articles of the Penal Code protected the life, health and integrity of the unborn but also of the mother. The Magisterium assailed modern notions of liberty where people take as their sole and indisputable reference for their own choices, "not the truth about good and evil, but only their subjective and changeable opinion or even their selfish and whimsical interest", leading to the loss of any reference to common values and to a state where everything is negotiable, "even the first of the fundamental rights, the right to life." [3] The Episcopal Conference argued that the "original and inalienable right to life" could not be subject to political debate, and stated that to "claim the right to abortion, to infanticide ..., means attributing to human freedom a perverse and evil significance: absolute power over and against others." [3] Notably, opponents of the challenge to the law brought attention to the American Convention on Human Rights, which states in article 4.1 that "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception." In addition to this formal intervention, the Constitutional Court received a written contribution signed by all the Archbishops in Colombia, including Pedro Rubiano Sáenz, Archbishop of Bogotá, urging the Court to rule the articles constitutional. [3]
The Inspector General of Colombia, Edgardo Maya Villazón, asked the Court to decriminalize abortion in the cases of maternal health, life-threatening foetal defects and conception without the woman's consent (in legal terms, ruling article 122 conditionally constitutional). Constitutionally, the Inspector General held that the right to life must be balanced with and interpreted alongside the principle of human dignity. [3] The Inspector General concluded that criminalizing abortion in the aforementioned cases constituted an unreasonable and disproportionate sanction, interfering with a woman's fundamental rights.
On May 10, 2006, the Constitutional Court reached a 5–3 decision which partially decriminalized abortion in Colombia under certain circumstances.
The majority opinion examined several constitutional and legal issues pertaining to life and fundamental rights, including: [3] [10]
Concretely, the Court ruled that the total ban on abortion in Article 122 of the Penal Code was unconstitutional. While the life of the unborn is protected by the constitutional order, the Court considered that the legislator is not obligated to adopt criminal laws to protect the life of the unborn, although it also stated that such measures were not disproportionate. However, a complete ban on abortion meant the complete dominance of one legal interest (the life of the unborn) over all others, specifically the fundamental rights of the mother. [3] The Colombian Constitution, in the Court's opinion, is characterized by the coexistence of several values, principles and rights – none of which have an absolute value against the others. Therefore, the ban on abortion was therefore unconstitutional, as it completely ignored the dignity of the mother and reduced her to "a mere receptacle of unborn life, lacking rights or constitutionally relevant interests meriting protection." [3] Article 124, which imposed a reduced sentence on the mother in cases of rape, was also ruled to be unconstitutional because it was disproportionate. As a result, the Court ruled that abortion should be permitted in cases where the pregnancy is the result of rape, artificial insemination without consent, incest, if the pregnancy threatens the life and health (physical and mental) of the woman and in cases of foetal malformations rendering the fetus inviable. [3]
The Court also struck down the phrase "or in women younger than fourteen" in Article 123, which subjected those who practised an abortion on a woman younger than fourteen to a longer jail sentence. Prior constitutional jurisprudence had recognized that minors had the right, depending on their maturity, to consent to medical interventions or treatments. [3]
The Court concluded by stating that it had limited itself to noting the three 'extreme scenarios' which violated the Constitution, and that nothing prevents the legislator from decriminalizing abortion in other circumstances. [3]
Despite the decriminalization of abortion in several women's groups and the Constitutional Court have identified a number of barriers imposed on women seeking a legal abortion. These include requests for additional requirements to those set forth by sentence C-355/06, unfounded conscientious objections and medical boards unjustifiably delaying the procedure by more than 5 days (the limit estimated by the Court to respond to a woman's request). [18]
In October 2009, the Constitutional Court heard the case of a woman who was diagnosed with a severe fetal malformation that was incompatible with life, but her healthcare provider would only authorize an abortion if a judge granted a judicial order to do so (a condition not required under the law), which the judge did not grant because of conscientious objections. [9] The court's ruling reiterated that neither institutions nor judicial authorities can refuse a woman an abortion based on conscience claims, and stated that, under the circumstances where an abortion is legal, women "enjoy a right to decide, free from any pressure, coercion, urging, manipulation and, in general, any sort of inadmissible intervention, to terminate a pregnancy … it is forbidden to raise any obstacles, requirements or additional barriers." [19]
In October 2013 the Guttmacher Institute reported an estimated 400,400 induced abortions were performed in Colombia in 2008, of which only 322 were reported as legal procedures. [20] These numbers are much higher than the official statistics reported by the Ministry of Health, which indicated that 15,000 abortions were performed in Colombia between 2009 and 2012. In Bogotá, according to the District Department of Health, there were 16,947 legal abortions carried out in the city between 2006 and 2013. [21] The most commonly cited reasons for legal abortion procedures in Bogotá were mental health (52.8%) and physical health (27.8%).
According to the Prosecutor's Office, 2,290 women were criminalized for abortion between 2005 and 2017. Of these, 502 are minors and in addition to the three girls aged 11 and 12, there are 499 between the ages of 14 and 18 who have had to answer to justice. Approximately 25.2% of women penalized for abortion in Colombia are minors. [20]
On March 2, 2020, the Constitutional Court of Colombia declared itself inhibited and incompetent to issue a ruling regarding a lawsuit against the current decree that authorizes abortion only in three specific cases and that the lives of the mother and baby are endangered. The lawsuit asked to allow abortion without restrictions. The court said it did not have enough arguments to issue the Judgment. [10]
On February 21, 2022, the Constitutional Court of Colombia declared that abortion cannot be a crime under Colombian law, if the abortion takes place within the first 24 weeks of pregnancy. [22]
Abortion in Ireland is regulated by the Health Act 2018. Abortion is permitted in Ireland during the first twelve weeks of pregnancy, and later in cases where the pregnant woman's life or health is at risk, or in the cases of a fatal foetal abnormality. Abortion services commenced on 1 January 2019, following its legalisation by the aforementioned Act, which became law on 20 December 2018. Previously, the 8th Constitutional Amendment had given the life of the unborn foetus the same value as that of its mother, but the 36th constitutional amendment, approved by referendum in May 2018, replaced this with a clause permitting the Oireachtas (parliament) to legislate for the termination of pregnancies.
The Unborn Victims of Violence Act of 2004 is a United States law that recognizes an embryo or fetus in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."
Abortion laws vary widely among countries and territories, and have changed over time. Such laws range from abortion being freely available on request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances. Many countries and territories that allow abortion have gestational limits for the procedure depending on the reason; with the majority being up to 12 weeks for abortion on request, up to 24 weeks for rape, incest, or socioeconomic reasons, and more for fetal impairment or risk to the woman's health or life. As of 2022, countries that legally allow abortion on request or for socioeconomic reasons comprise about 60% of the world's population.
Abortion in France is legal upon request until 14 weeks after conception. Abortions at later stages of pregnancy up until birth are allowed if two physicians certify that the abortion will be done to prevent injury to the physical or mental health of the pregnant woman; a risk to the life of the pregnant woman; or that the child will suffer from a particularly severe illness recognized as incurable. The abortion law was liberalized by the Veil Act in 1975.
Abortion in Germany is legal on demand during the first 12 weeks of pregnancy under the condition of mandatory counseling, and it is permitted later in pregnancy in cases that the pregnancy poses an important danger to the physical or mental health of the pregnant woman. In the case that the abortion is because of a rape it is legal in the first 12 weeks without mandatory counseling. The woman needs to receive counseling, called Schwangerschaftskonfliktberatung, at least three days prior to the abortion and must take place at a state-approved centre, which afterwards gives the applicant a Beratungsschein.
Chile's abortion laws have undergone significant changes in recent years. Prior to 2017, Chile had one of the strictest abortion laws globally, prohibiting the practice altogether. However, since then, abortion has become legal in certain circumstances.
Abortion in Brazil is a crime, with penalties of 1 to 3 years of imprisonment for the pregnant woman, and 1 to 4 years of imprisonment for the doctor or any other person who performs the abortion on someone else. In three specific situations in Brazil, induced abortion is not punishable by law: in cases of risk to woman's life; when the pregnancy is the result of rape; and if the fetus is anencephalic. In these cases, the Brazilian government provides the abortion procedure free of charge through the Sistema Único de Saúde. This does not mean that the law regards abortion in these cases as a right, but only that women who receive abortions under these circumstances, and the doctors, will not be punished. The punishment for a woman who performs an abortion on herself or consents to an abortion performed by another outside these legal exceptions is one to three years of detention. The base penalty for a third party that performs an illegal abortion with the consent of the patient, ranges from one to four years of detention, with the possibility of increase by a third if the woman comes to any physical harm, and can be doubled if she dies. Criminal penalties fixed at four years or less can be converted to non-incarceration punishments, such as community service and compulsory donation to charity.
Fetal rights are the moral rights or legal rights of the human fetus under natural and civil law. The term fetal rights came into wide usage after Roe v. Wade, the 1973 landmark case that legalized abortion in the United States. The concept of fetal rights has evolved to include the issues of maternal substance use disorders, including alcohol use disorder and opioid use disorder. Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth." While international human rights instruments lack a universal inclusion of the fetus as a person for the purposes of human rights, the fetus is granted various rights in the constitutions and civil codes of several countries.
Abortion in Argentina is legal as an elective medical procedure during the first 14 weeks from conception. The abortion law was liberalized after the Voluntary Interruption of Pregnancy Bill (Argentina) was passed by the National Congress in December 2020. According to the law, any woman can request the procedure at any public or private health facility. Doctors are legally bound to either perform it or, if they are conscientious objectors, refer the patient to another physician or health facility. Only three other Latin or South American countries legalised abortion on request nationwide before Argentina did: Cuba in 1965, Guyana in 1995 and Uruguay in 2012. According to polling in 2021, around 44% of Argentines support the legalization of abortion on request; other polls showed 50–60% of Argentines opposed the bill.
Abortion is illegal in El Salvador. The law formerly permitted an abortion to be performed under some limited circumstances, but in 1998 all exceptions were removed when a new abortion law went into effect.
The timeline of women's legal rights (other than voting) represents formal changes and reforms regarding women's rights. The changes include actual law reforms, as well as other formal changes (e.g. reforms through new interpretations of laws by precedents). The right to vote is exempted from the timeline: for that right, see Timeline of women's suffrage. The timeline excludes ideological changes and events within feminism and antifeminism; for that, see Timeline of feminism.
Since 2021, abortion has no longer been a federal crime in Mexico. The criminal law in Mexico varies by state. On 7 September 2023, the Mexican Supreme Court unanimously ruled that penalising abortion is unconstitutional, setting an important precedent across the whole country. Before 2019, abortion had been severely restricted outside of Mexico City, where it was legalized on-request in 2007. As of August 2023, abortion is available on request to any woman during the first twelve weeks of a pregnancy in Mexico City and the states of Oaxaca, Hidalgo, Veracruz, Coahuila, Colima, Baja California, Sinaloa, Guerrero, Baja California Sur, Quintana Roo, and Aguascalientes. However, even in states where abortion is legal, there continue to be women in pre-trial detention for murder due to spontaneous miscarriage.
This is a timeline of reproductive rights legislation, a chronological list of laws and legal decisions affecting human reproductive rights. Reproductive rights are a sub-set of human rights pertaining to issues of reproduction and reproductive health. These rights may include some or all of the following: the right to legal or safe abortion, the right to birth control, the right to access quality reproductive healthcare, and the right to education and access in order to make reproductive choices free from coercion, discrimination, and violence. Reproductive rights may also include the right to receive education about contraception and sexually transmitted infections, and freedom from coerced sterilization, abortion, and contraception, and protection from practices such as female genital mutilation (FGM).
Abortion in Andorra is illegal in all cases; the Co-Princes of Andorra are the President of France and the Bishop of Urgell, who is required to adhere to Roman Catholic teaching on pregnancy. Around 88% of its population identifies as Roman Catholic.
Abortion in Ecuador is illegal except when performed in the case of a threat to the life or health of a pregnant woman or when the pregnancy is the result of rape, including but not only a sexual crime against a mentally disabled woman where her legal representative has consented to the abortion. In 2021, the Constitutional Court of Ecuador ruled for the decriminalization of abortion in all cases of rape.
The Dominican Republic is one of 24 countries in the world and one of six in Latin America that has a complete ban on abortion. This complete ban includes situations in which a pregnant person’s life is at risk.
Abortion in Spain is legal upon request up to 14 weeks of pregnancy, and at later stages for serious risk to the health of the woman or fetal defects.
Abortion in Costa Rica is severely restricted by criminal law. Currently, abortions are allowed in Costa Rica only in order to preserve the life or physical health of the woman. Abortions are illegal in almost all cases, including when the pregnancy is a result of rape or incest and when the foetus suffers from medical problems or birth defects. Both social and economic factors have led to this legal status. It remains unclear whether abortions are legal to preserve the mental health of the woman, though the 2013 United Nations abortion report says Costa Rica does allow abortions concerning the mental health of a woman.
Abortion in South Korea was decriminalized, effective 1 January 2021, by a 2019 order of the Constitutional Court of Korea.
Timeline of women's legal rights (other than voting) represents formal changes and reforms regarding women's rights. That includes actual law reforms as well as other formal changes, such as reforms through new interpretations of laws by precedents. The right to vote is exempted from the timeline: for that right, see Timeline of women's suffrage. The timeline also excludes ideological changes and events within feminism and antifeminism: for that, see Timeline of feminism.
