A case brought to Colombia’s top court by anti-abortion campaigner Natalia Bernal Cano could transform the country’s abortion law when the verdict is announced in the next few weeks – but perhaps not in the way she hoped.
Since a 2006 ruling by Colombia’s powerful Constitutional Court, women have been allowed to terminate a pregnancy in cases of rape or incest, fatal fetal abnormality, or danger to the physical or mental health of the mother.
Those three exceptions put Colombia in a middle-of-the-road position among Latin American and Caribbean countries’ exceptionally strict regimes on abortion. Six countries in the region, including El Salvador and the Dominican Republic, ban all abortions, whatever the circumstances. Only Uruguay, Cuba and Guyana allow all elective abortions in early pregnancy.
Last year Bernal, a lawyer, filed two legal actions in the Constitutional Court, hoping to push Colombia back into the former camp. She argues that the three exceptions are unconstitutional, on the grounds that all abortions carry health risks “for both the woman and her unborn child”.
But one of the nine judges examining the case, Alejandro Linares Cantillo, argued that the court should consider why abortion is illegal in the first place. On Feb. 19 he issued a formal proposal for the other judges to consider legalizing all abortions in the first 16 weeks of pregnancy.
Between them, Linares and Bernal have revived a tense debate in Colombia, where almost three quarters of the population are Catholic. The ruling, expected by early March, will be closely watched in Colombia, and the rest of Latin America.
A National Controversy
Opponents of abortion say Colombian authorities have become too permissive about the procedure since 2006. Conservative politicians expressed outrage at the case of a woman in the western city of Popayán, who had a legal abortion in January at seven months pregnant as a result of mental-health problems.
The woman’s ex-boyfriend, who had not wanted her to get an abortion, waged a widely-reported campaign against her decision, staging protests and later threatening to sue her.
Bernal argues that exceptions like the one used by the woman in Popayán “cause immeasurable harm to the people of Colombia,” she told national newspaper El Espectador, including “post-traumatic stress” and “serious depressions” for women who have abortions.
Bernal has issued several unsuccessful requests for Linares to be recused for the case, arguing the judge, known for liberal leanings, is biased.
Abortion-rights groups say the Popayán case is an illustration of how hard it is to even get a legal abortion. Family-planning nonprofit Profamilia said the woman had been seeking a termination since her first trimester, but health officials refused her. The organization says 94% of women who seek an abortion do so within the first 15 weeks of pregnancy.
Paula Avila Guillen, a human rights lawyer and the Latin America director at the New York–based Women’s Equality Center, says the current law discriminates against “poorer women who rely on the public health system” where the three-exceptions law is patchily implemented, while rich women can access abortions more easily from private doctors.
Advocates argue that legalizing all abortions in Colombia would prevent women from facing lengthy bureaucratic delays and free them from fear of arrest or prosecution if they seek medical help; data released by Colombia’s attorney general last year showed that between 2005 and 2017, 2,290 women were prosecuted for having an abortion – including 502 minors.
The court is unlikely to reverse the 2006 decision, local media report, since it has already upheld the constitutionality of the three exceptions on several occasions.
But it’s less clear what the outcome will be for Linares’ proposal for legal abortions up to 16 weeks. According to daily El Tiempo, four of the nine judges, including Linares, are likely to support the proposition and three are likely to oppose it. The two judges that are most likely to be swing votes are both women, according to Guillen.
Despite a wave of protests across the region in recent years, no Latin American country has legalized abortion since Uruguay in 2012. Argentine activists’ attempt to pass a legalization law failed in 2018, when the senate narrowly rejected the bill after the lower house approved it. Argentine legislators who support abortion are expected to try again soon, after new president Alberto Fernandez vowed to legalize abortion during his term.
Guillen says the last three years have felt like a turning point for abortion rights in the region. “It feels like we are taking back control and starting to move forward again, after a lull.” The verdict in Colombia could turn the tide, she says, particularly if Bernal’s attempt to reverse liberalization backfires. “With abortion debates all over the region, that would be a very good precedent to have.”