Abortion Decriminalization in Colombia: Legal Fetishism or Practical Reform?

Valentina Montoya Robledo

Universidad de los Andes

Fourteen years ago, the Colombian Constitutional Court decriminalized abortion under three circumstances (threat to women's life or health, severe fetal malformations incompatible with life, and rape, incest, or unwanted insemination), through decision C-355 of 2006. However, this decision has faced considerable implementation gaps threatening the constitutional rights of millions of women, girls, and gestating persons, forcing them to undergo unsafe abortions or unwanted pregnancies. Therefore, building on this precedent and considering its implementation difficulties, last month the Court further decriminalized abortion until week 24 of gestation, in decision C-055 of 2022 (read the press release here). This groundbreaking verdict is a win for this population, medical personnel, and activists in Colombia. From the perspective of legal fetishism, as it is commonly understood and Julieta Lemaitre’s defense of the concept, this post describes the claim, summarizes the Court’s decision, and analyzes the aftermath of the decision and possible implementation challenges. 

How Can We Understand Legal Fetishism?

In the book “El derecho como Conjuro: Fetichismo legal, Violencia y movimientos sociales," legal scholar and Judge Julieta Lemaitre explains that the common understanding of legal fetishism builds on the idea that “…the legal fetishist has the absurd belief that the law changes the social reality” (p. 384, personal translation). It is this naïve sense that ignores the gap between legal reform and its practical application. Despite this understanding, Lemaitre defends legal fetishism, arguing that, in essence, it is "…the pleasure that produces progressive law independent from its application, or even better, more than its real application possibilities. It is an emotion tied not to the concrete benefits but to the political and cultural meanings that the law invokes…” (p. 385-6, personal translation).

The Claim

La Mesa por la Vida y la Salud de las Mujeres, the Center for Reproductive Rights, Women’s Link Worldwide, Católicas por el Derecho a Decidir y Grupo Médico por el Derecho a Decidir, with support from individual and institutional experts, promoted the Causa Justa Movement, filing a claim two years ago seeking to eliminate abortion from the Colombian Criminal Code. The movement claimed that article 122 of the Code was unconstitutional as it violated the rights to voluntary pregnancy interruption, to health, to the professional freedom of health personnel, to equality for women under informal migratory conditions, and to freedom of conscience; as well as violating the principle of a secular state, and various criminal law constitutional principles. In addition, claimants considered that the crime of abortion was unfair, especially for the most vulnerable women, women in general, and health personnel. They further considered that better health policies and quality sex education programs could be more effective in preventing maternal mortality and health complications from unsafe abortions and unwanted pregnancies than criminal law. 

The Decision

The Constitutional Court recognized that the State must respect the right to health by removing legal obstacles for women, girls, and gestating people to access reproductive health. They considered that article 122 constituted one of the barriers driving women to unsafe abortions that placed their life, health, and integrity at risk. By criminalizing abortion, the Court found the State also interfered with moral or intimate beliefs, forcing unwanted pregnancies and limiting freedom of conscience. 

The question that the Court had to answer was whether the criminalization of abortion effectively protects life in gestation (as a preventive measure) against the backdrop of the norm’s vast non-compliance. Likewise, the Court posited that the lack of legal regulation had not protected the life in gestation, nor women’s and couples’ dignity and rights. This has been particularly evident since the Court issued Decision C-355 of 2006, because of the constant access barriers to voluntary pregnancy interruption, against the last resort character of criminal law. Criminal law has become the primary approach, challenging constitutional principles such as human dignity, particularly of girls and women, and criminalizing abortion based on sex, a suspicious criterion of discrimination. The Court also found that criminalizing consented abortion is not always necessary since there are less harmful constitutional mechanisms available to protect life in gestation, health and reproductive rights, and freedom of conscience. Based on official data, the Court stated that women prosecuted for abortion faced intersectional sources of discrimination, which further disempowered them. 

The Court decriminalized abortion until the 24th week of gestation. Doing so recognized the tension between protecting the constitutional end of life in gestation with the principles and values described above. In addition, based on the concept of autonomy, the Court took scientific data that established that beyond the 24th week—the highest stage of embryonic development—the probability of extra-uterine life surpasses 50%. This middle-ground approach is consistent with the idea of gradual and incremental protection of life in gestation while also protecting women's, girls', and health personnel's constitutional rights. The Court further encouraged Congress and the government to formulate and implement a comprehensive public policy on the issue, notwithstanding the mandate to comply immediately with the decision. 

The Aftermath and Some Thoughts on Legal Fetichism

On February 21, 2022, just after the Court’s decision, thousands of women with green kerchiefs danced and sang in the streets in front of the Palacio de Justicia in downtown Bogotá. Their bodies expressed the joy for the legal reform that Lemaitre describes in her defense of legal fetishism. Without knowing what will come next, this pleasure with the verdict evidences their belief in the decision’s cultural and political message: women have a right over their bodies, they are not criminals for ending unwanted pregnancies, they are autonomous (until week 24 of gestation or under the three previous circumstances). As they expressed, this was a significant victory for lower-income women and girls and those coming from rural areas, the vast majority of those criminalized for abortion or ending up with unwanted pregnancies in the country. It is also a message that reinstates the secular State as a foundational principle in Colombia. After similar decisions in Mexico and Argentina, it follows a cultural shift taking place in Latin America.  

Beyond the message of greater equality and access to reproductive rights for this large percentage of the population, the backlash from the anti-rights movement was immediate. This comes as no surprise in a highly religious country like Colombia. Straightaway, the national government headed by right-wing President Iván Duque and Vice President and Chancellor Marta Lucía Ramírez disagreed with the Court's decision. In total ignorance of the actual medical procedure, President Duque went so far as to argue that the decision promoted abortion as a "contraceptive measure." Meanwhile, Congress has been delaying a law on the subject matter for more than 14 years, affecting the lives and health of millions of women and girls in Colombia. The Court has emphasized that even without regulation from legislative and executive branches, abortion must be decriminalized in practice. 

With democratic elections for Congress and the Presidency taking place this year, and the Court's mandate on practical implementation, one cannot help but wonder whether the recent decision will merely remain on paper or will actually become a reality. This doubt follows what detractors of the original meaning of legal fetishism will argue. We must remember that Colombia is a highly Catholic country (with Evangelicals also following similar anti-rights ideas) and where presidential and Congress candidates still look for alliances with religious leaders to secure election. In this scenario, one might take a middle ground: while being hesitant about the actual impact of the decision, one might also act on Lemaitre's defense of the joy for the progressive law that we saw in February on many Colombian streets, and continue fighting for the actual implementation of the Court’s decision.    

Valentina Montoya Robledo is Assistant Professor of Law at Universidad de los Andes

Suggested Citation: Valentina Montoya Robledo ‘Abortion Decriminalization in Colombia: legal fetishism or practical reform?’ IACL-IADC blog (10 March 2022) https://blog-iacl-aidc.org/new-blog-3/2022/3/10/abortion-decriminalization-in-colombia-legal-fetishism-or-practical-reform.