Bogota – Colombia’s Constitutional Court shut down a landmark abortion case on Monday that divided the South American country and offered what experts called an opportunity to “set a precedent for the region”.
For 14 years, Colombian law allowed for abortions under three circumstances: if the mother’s life was endangered, if the pregnancy was a product of rape or if the fetus is fatally deformed.
A case, brought forward by a hardline anti-abortion rights activist, sought to eliminate those exceptions, but instead offered the court an opening to permit abortions during the first months of pregnancy.
On Monday afternoon, the magistrates announced in a 6-3 decision that it would maintain the status quo, a move hailed both as a disappointment and a victory for women’s rights activists.
“The court is missing an opportunity to expand abortion access,” said Paula Avila-Guillen, director of Latin America Initiatives for the Women’s Equality Center. “However, it’s a verification that we’re not moving backward.”
The case divided the South American country. A February poll by Colombian magazine Semana suggested that nearly 70 percent of the country was opposed to the legalisation of abortion in the first four months of a pregnancy, but abortion rights and anti-abortion rights protests have mounted leading up to Monday’s decision.
As the court deliberated, protesters on both sides faced off on the street outside the court building. An invisible ideological wall seemed to run along the city’s main street, dividing the two groups who screamed at each other.
Protesters with green pro-choice bandanas screamed, “Yes, yes, yes for abortion”, while groups with blue anti-abortion rights bandanas screamed back, “Yes, yes, yes, for life.”
The controversial case was brought to the table by hardline anti-abortion rights lawyer Natalia Bernal in 2019. Bernal asked for a total ban on abortion after a 22-year-old woman in the western Catholic city of Popayan had an abortion at seven months after a psychological assessment noted that she was suffering from severe mental issues like depression as a result of the pregnancy.
“My theory is that if abortion rights are increased, there will be many more women who are raped because the rapist knows that the State will permit women to get rid of the consequences of the rape,” Bernal told local media Red+ in late 2019 without providing any evidence to back up her claim.
But instead, the legal challenge put on the table the possibility of legalisation.
The case came after a wave of feminist movements swept across the region. Of the 33 countries that make up Latin America and the Caribbean, only Uruguay, Cuba and Guayana allow for abortion procedures without a woman needing to prove her pregnancy endangers her life or that she was raped. In Argentina, a similar conversation is playing out as congressional legislators are set to consider a bill that would legalise abortion.
Despite the shifts, much of the largely Catholic country remains strongly against abortion rights, including Colombian President Ivan Duque who called any move away from the three exceptions “very tough”.
“I’m pro-life. I believe life starts at conception,” he said in February.
Legal red tape
In 2006, Colombia’s Constitutional Court overturned an all-out ban on abortion and, on paper, Colombia’s laws appear more liberal than neighbouring countries. But the legal red tape associated with the laws make access to abortion in many cases virtually impossible, and women seeking abortions are often asked for proof of rape beyond police reports.
Other healthcare providers refuse to perform the abortion or create elongated approval processes for women who are often “running against time” to receive the care, said Cristina Rosero, a lawyer at the Center for Reproductive Rights in Bogota.
We’re “seeing health professionals just … putting up illegal obstacles, and they’re not being held accountable for it,” Rosero told Al Jazeera. “That creates this impunity feeling that lets them not comply with the law because they don’t feel there is going to be any consequence.”
In 13 years, 300 legal complaints have been filed from women who say they were denied a legal abortion, yet only three of those cases ended in sanctions of healthcare providers, according to Women’s Link.
In rural zones of the country also often lack sufficient medical supplies or training to perform such procedures, so such care becomes inaccessible to large swaths of the population.
“This is about privilege,” said Avila-Guillen, who recalled that while growing up in a rural area, friends would have to travel more than 350km (217 miles) by bus to get medical attention in Bogota.
An estimated 400,400 abortions are performed each year in Colombia, according to US-based reproductive rights organisation Guttmacher Institute. In 2018, private abortion provider Profamilia said 16,878 legal abortions were performed legally.
Despite that being a massive jump in the number of legal procedures from 2008 – when Guttmacher documented 322 legal procedures performed in medical clinics – it means the vast majority of abortions performed in the country are still clandestine.
Almost 15 percent of maternal deaths across the world are a product of botched clandestine abortions, and women living in rural zones are more likely to experience medical complications than those in cities.
While the court decision did little to change the legal status quo in the South American country, Rosero said the case is still an important step for groups to open new challenges to abortion law in the predominately Catholic country because the court refused to acknowledge Bernal’s challenge.
It also, she said, launched a public conversation that is only expected to continue.
“It opens the doors for advances which haven’t happened in 14 years,” she said. “This is a huge step because it means that the public debate is going forward and the people are ready for a conversation.”