New court ruling threatens women’s right to abortion in Colombia

Women’s groups in Colombia are concerned about how a recent ruling from the Constitutional Court may affect the right to abortion. The sentence, dated May 15 but made public on Friday, concerns a young indigenous woman who had been denied an abortion by her public health center. While the judges sided with the woman, the ruling — known as T-158 from 2023 — stated: “It is not possible to assert the fundamental right to abortion.”

This has set off alarm bells in Colombia, as it goes against previous rulings by the Constitutional Court, which found that women do have a constitutional right to abortion, although it may be in conflict with other rights. In 2006, the Constitutional Court reached a seminal decision on the matter, decriminalizing abortion in cases of physical or mental risk to the mother, fetal malformation and rape. In February 2022, the women’s movement scored another victory, when the nine-member court legalized abortion to the 24th week of pregnancy. This was achieved after a long internal debate among the judges, and a very tight 5-4 vote in favor of decriminalization.

The court also issued numerous rulings in support of women’s reproductive rights before the definitive 2022 case. In 2010, it cited the 2006 precedent, stating that from that moment on “in Colombia, a true right to abortion emerged in women’s minds.” And in 2018, the court wrote that “more than 12 years have passed since the right to abortion was recognized.”

It will take more than Friday’s ruling to change the line of case law. Indeed, the T-158 judgment has fallen under the radar as it breaks with the case law of the Constitutional Court. The court’s decision is what is known in Colombia as a sentencia de tutela — it is a mechanism that allows anyone to go to court to obtain immediate protection of their fundamental rights. The ruling was signed by only three of the nine magistrates of the court, as is typical of such types of sentences. If a magistrate believes case law needs to be changed, it is reviewed by all nine judges in order to reach a unifying decision. These judgments — which are identified by the letters SU — carry greater weight than sentencias de tutela.

But while T-158 it may be a sentencia de tutela, it is still of concern to the pro-choice movement Causa Justa (Just Cause). Catalina Martínez Coral, from the Center for Sexual and Reproductive Rights, told EL PAÍS that they will ask the court to declare judgment T-158 null and void. “We have requested the annulment of this sentence because it ignores a whole block of constitutionality that has been created in the Constitutional Court around sexual and reproductive rights,” she said, adding that the 2022 ruling on abortion rights “remains in force across the county independent of the sentencia de tutela.”

The case

The controversial judgment concerns a 23-year-old indigenous woman from the Polindara reservation in Totoró, Cauca, who launched a legal battle to defend her right to an abortion in 2022. She had requested an abortion from the Cauca Indigenous Association (AIC), a public health organization that provides care to indigenous people. But the association denied it, alleging that they did not have to conform to state law as they had indigenous autonomy.

The Constitutional Court ruled in favor of the indigenous woman, stating that the organization had violated her sexual and reproductive rights. It argued that while Colombia’s 2022 ruling “does not expressly establish a right to abortion, it does not necessarily follow that an organization belonging to the social security health system does not have obligations related to its practice.”

Due to the association’s refusal to carry out an abortion, the woman was forced to continue with the pregnancy. Although it was too late to change events, the court said that it was necessary to reach a ruling so that such a situation would not happen again in the future.

When the woman first brought her case to court, a judge ruled that she had to adhere to the norms of the indigenous community, as she did not fall into the three categories under which abortion was decriminalized in 2006. This was despite the fact that a psychologist reported that she had requested an abortion for “mental health reasons, breakdown of family support networks and the effect on her life plans.”

At the time, the AIC said that it had to abide by what ancestral authorities of the Polindara people had decided in a general assembly. This assembly concluded that they did not approve abortions in indigenous territories, and as a result, “each area must issue a resolution with a clear policy that prevents this type of procedure in our indigenous women.”

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