Constitutionality of abortion

Constitutionality review as per citizens request (Ana Cristina González Vélez et alia) of the Act 599 of 2000 (Criminal Code - partial)

Date:  02/21/2022

Judge-Rapporteurs:  Antonio José Lizarazo Ocampo & Alberto Rojas Ríos

Concurrence: Diana Constanza Fajardo Rivera.  Julio Andrés Ossa Santamaría (Deputy Justice). Alberto Rojas Ríos

Dissent: Jorge Enrique Ibáñez Najar. Paola Andrea Meneses Mosquera. Gloria Stella Ortiz Delgado. Cristina Pardo Schlesinger.

The reviewed provisions.  Act 599 of 2000 adopted the Criminal Code. Questioned article 122 declared a criminal offense subject to imprisonment, the practice of abortion in all cases. The Constitutional Court decided in a previous judgment (C-355/06) that the conduct will not be considered a criminal offense in three cases: i) When the pregnancy continuation puts in danger the life of the pregnant woman, ii) When the fetus's life is non-viable, and iii) When the pregnancy is the result of rape or sexual abuse.

The plaintiffs´ arguments. The plaintiffs alleged that the challenged provision transgresses the right of women, girls, and others who can become pregnant to health, and to freely decide on reproduction. It also overlooks the deterrence purpose of punishment. Finally, it contravenes the freedom of conscience of women as well as the right to equality for women in a situation of vulnerability.

Issue: Does abortion barring infringe the fundamental rights of women, girls, and others who can become pregnant?

Ruling and reasoning.  Yes.  The Court concluded that the banning of abortion goes against the five principles and rights adduced by the plaintiffs, i.e. gravid women´s health, their free decision on reproduction, their freedom of conscience, the purpose of punishment, and the right to equality of vulnerable women. However, noting also the need to counter-balance those rights and principles with the constitutional objective of protecting prenatal life, it did not declare the absolute unconstitutionality of article 122 but instead ruled conditions to enforce it.

Therefore, the Court RULED THE CONDITIONAL CONSTITUTIONALITY of the accused article, provided that the offense will only arise if abortion is performed after pregnancy week 24. Notwithstanding, the exceptions expounded in Judgment C-355/06, as mentioned before, continue to be valid and applicable during the whole gestation period.