On February 21, 2022, after a long wait, the Constitutional Court of Colombia issued a tremendously relevant decision in the fight for the decriminalization of voluntary interruption of pregnancy (IVE, acronym in Spanish), not only for the Colombian local context, but for the region. Thus, through judgment C-055 of 2022, the Court ruled that there is no crime of abortion when the voluntary interruption of pregnancy (VI) occurs before the 24th week of pregnancy.
Although the full text of the court decision is not yet known, the press release that sets out the central arguments that motivated this decision is public.
What did the Colombian Constitutional Court decide?
In this case, the Court studied the demand presented by the Causa Justa por el Aborto movement, in which it requested the elimination of the crime of abortion from the Penal Code, that is, that it was no longer a crime for women (and pregnant people) to have an abortion. Although this was not exactly the meaning of the decision, since the crime was not removed from the criminal law, the Court established that “(…) it does not constitute a crime when the conduct [aborto] is practiced before the 24th week of pregnancy (…)”.
It is worth mentioning that this time limit does not apply when the abortion is performed under the three circumstances decriminalized by the Constitutional Court in 2006 (sentence C-355 of 2006), that is, when: (i) the pregnancy represents a risk to the life or women’s health; (ii) there is serious malformation of the fetus or (iii) the pregnancy is the product of rape. Finally, the Court urged Congress and the government to “formulate and implement a comprehensive public policy on the matter.”
In its most recent decision (2022), the Court made it clear that the crime of abortion ignores the right to equality of women in situations of vulnerability, including migrant women in an irregular migratory situation. It is very significant that the Court has declared the existence of this violation of the right to equality because it contributes to the protection of the sexual and reproductive rights of women in Colombia, including migrant women, regardless of their migratory status.
Also notable is the fact that it explicitly named migrant women in the decision. This is so, not only because it recognizes them as holders of rights, but also because the Colombian migratory context in recent years is a determining factor in the adoption of the decision.
What are the particularities of migrant women?
The incorporation of the situation of the most vulnerable women in Colombia in the study and decision of this case, not only of nationals but also of foreigners, recognizes and makes visible a reality that cannot be hidden under the rug. That is, that women abort, despite the multiple barriers they have to overcome – among them, penalization, imprisonment and stigmatization.
In the case of migrant women, they do not give up the practice of abortion because they are foreigners or even find themselves in an irregular migratory situation in Colombia. Unlike national women, migrant women face additional dissuasive fears that they have to deal with. It is about the risk, always latent, of being subject to a migratory sanction such as deportation or expulsion, an anguish typical of the migratory experience, which is even more profound when women find themselves in an irregular migratory situation.
As we expressed through the Legal Clinic for Migrants and the Center for Migration Studies (CEM) of the University of the Andes in the citizen intervention presented to the Constitutional Court, “what can start as a request for a health service, can end up alerting different authorities, judicial administrative and administrative proceedings, and may initiate criminal and administrative proceedings against migrant women and girls who access the IVE”.
Both criminal and administrative immigration proceedings have a negative impact on the lives of migrant women, who may end up being sanctioned due to the enormous stigma attached to abortion. The concomitance of poverty and irregular migration status deepens women’s situation of vulnerability. They expose themselves to clandestine and unsafe EDI procedures, putting their lives, health and integrity at risk.
Why is this decision important for migrant women?
This decision is an incentive for all women, including women who have had to migrate, often in adverse and precarious conditions, for their lives and migratory journeys. It must also be said that the fact that a decision by the highest constitutional court in Colombia named these women and recognized and incorporated their situation, so often marginal and invisible, is of enormous symbolic value.
This symbolic effect of naming them gives voice to migrant women and recognizes them as subjects of rights. Welcoming and capturing the experience of migrant women in accessing abortion also encourages and stimulates those of us who are dedicated to defending the rights of these people. Therefore, I celebrate this decision and trust that it will be a useful instrument for defending the rights of migrant and refugee women, including access to safe and legal abortion in Colombia.
This recognition that is taking place today in Colombia sends clear and important signals to the legal systems of the countries of the Latin American region, in whose territories migrant girls, youth and women move and inhabit. They must have access to abortion in safe conditions, free from stigmatization, violence and threats, if they require it.
