To facilitate this determination, the Court has established a four-part test to determine the existence of res judicata:

1. A legal action has previously been found unenforceable.
2. The provision that is the object of the action has legal effects already excluded from legal rule, even if the language is different.
3. The reasons why the previous legal action was declared unenforceable were based on merit and not defects in form.
4. The constitutional provisions that formed the basis of the finding of unenforceability are still in effect.

Life as a constitutional right that must be protected by the Colombian State, and the difference between this and the right to life.
The Preamble to the 1991 Colombian Constitution holds life to be one of the values that constitutional rule is meant to protect. Article 2 indicates that the authorities are charged with protecting the life of all persons residing in Colombia, and Article 11 provides that “the right to life is inviolable,” among other constitutional provisions. The manifold import of life may be gleaned from the Constitution; it is a value and a fundamental right. A distinction may be drawn between life as a constitutionally protected right and the right to life as a subjective fundamental right. The 1991 Constitution therefore provides for universal protection of life, which implies that any State action must be oriented towards protecting it, without limiting this protection to human life.

On the other hand, Congress is charged with adopting appropriate measures to fulfill the duty of protection of life, though this charge does not mean that all measures Congress passes to this end are justified, because notwithstanding the constitutional relevance of life, it is not an absolute value or right, but must be weighed against other constitutional values, principles, and rights.

Finally, in constitutional law, life is addressed differently, including the following distinctions:

1) The right to life as a legal right protected by the Constitution, which means ownership by and restriction to the human being; and
2) The protection of life claimed even for those who have not achieved status as a human being, such as plants and animals. Thus, universal protection of life and the right to life are different things.

Human life occurs in several stages and manifests in different ways, which in turn enjoy different legal protections. Though Colombian law protects the unborn, it does not do so to the same degree as it protects a human being. The sanction for infanticide is not the same as for homicide or genocide; the protected legal right is different in certain cases, and therefore, the legal weight of the social offense determines differing severities of punishment and proportionally different sentences.

The right to life in international human rights instruments.
The Constitutional Court established that a requirement of absolute and unconditional protection of the life of the unborn cannot be derived from international human rights instruments. On the contrary, in both its literal and systematic construction, the right to life of the unborn must be weighed against other rights, principles, and values recognized by the Constitution and in international human rights instruments. This test further implies identifying and weighing those rights that may be in conflict with the duty to protect life, as well as appreciating the constitutional importance of the holder of these rights, the pregnant woman in this case. The failure to apply such a test may violate the spirit of international human rights instruments, which aim to promote the rule of liberty and social justice.

Fundamental rights of women in the Colombian Constitution and in international law
In Colombia, the 1991 Constitution expressly included the goal of recognizing and upholding women’s rights and guaranteeing their effective protection and enforcement. Women now enjoy special protection, especially by judicial officers, without exception. The Constitutional Court has confirmed this in its case law and has pointed out that there are issues of particular concern to women that can impact their lives, and more particularly, their rights regarding their bodies, sexuality, and reproduction.

The Court has held that international treaties provide a basis for the recognition and protection of women’s reproductive rights, which in turn are derived from the protection of other rights such as the right to life, health, equality, non-discrimination, liberty, personal integrity, and freedom from violence. These rights form the cornerstone of reproductive rights. International human rights law has recognized women’s rights as human rights since the first World Conference on Human Rights was held in Teheran. Likewise, at the International Conference on Population and Development held in Cairo in 1994, women’s rights were emphasized, and it was recognized that reproductive rights are a class of human rights that were recognized in international treaties, and that they included the right of all persons to “decide freely and responsibly the number and spacing of their children and to have the information, education and means to do so.” It further established that “reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.” From this it is derived that men, women, and adolescents have the right “to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as […] the right of access to appropriate healthcare services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.”

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which went into effect in Colombia on February 19, 1982, is one of the most important international instruments regarding the protection and enforcement of women’s rights. Regarding the right to health, which includes women’s rights to reproductive healthcare and family planning, States are encouraged to offer a wide range of high-quality, affordable healthcare services, including sexual and reproductive healthcare. These healthcare policies and programs should be sensitive to gender issues. The CEDAW has further established that all barriers preventing women’s access to healthcare services and information and education on sexual and reproductive health must be eliminated, particularly those laws that criminalize certain medical procedures that particularly affect women and constitute a barrier to the medical care that women need, compromising their rights to gender equality in healthcare and therefore violating States’ international obligations to respect internationally recognized rights.

The CEDAW has likewise determined that women’s right to reproductive self-determination is violated when the means to exercise their right to birth control are compromised. The right to decide the number of children one will have is directly related to women’s right to life when legislation outlaws or severely limits abortion, which in turn leads to high rates of maternal mortality.

Privacy rights, too, are closely related to reproductive rights, and they may be violated with the State or private parties interfere with a woman’s right to make decisions about her body and reproduction. Privacy rights require doctors to respect patient confidentiality, so it would constitute a violation of rights for a State to legally require them to reveal confidential information and report women who have had an abortion.

Finally, the right to education and its relationship with women’s reproductive rights may be viewed at several levels. Women must have access to basic education in order to become empowered in their families and communities and become aware of their rights. Further, the right to education includes women’s right to receive education on reproductive health, and to decide the number and spacing of children freely and responsibly.

Limits on the powers of the legislative branch in criminal law
While it is the legislative branch that is empowered to enact criminal laws, the legislature may not exceed the limits established in constitutional principles, values, and rights of citizens. The Colombian Constitution, therefore, acts as a “check on the limits of the legislative branch’s competency, in order to prevent punitive excesses.” The Constitutional Court, then, as guardian of the integrity and supremacy of the Constitution, is charged with enforcing the limits that the Constitution imposes on the legislature; that is, it is the duty of the Court to examine whether legislation includes constitutionally valid restrictions. To this end, case law has established the following criteria to define whether a particular criminal offense or sanction complies with constitutional mandate:

1) Duty to observe strict legality. This means that the creation of criminal offenses is the exclusive competency of the legislature, and it is therefore mandatory to uphold the principles of prior definition of criminal offenses and non-retroactivity (unless favorable), and define the criminal conduct clearly, precisely, and unequivocally. 2) Duty to uphold constitutional rights. The legislature, when defining criminal offenses, is subject to the material content of constitutional rights and international treaties and conventions ratified by Colombia, and more broadly, to the constitutional corpus. 3) Duty to uphold the principles of proportionality and reasonableness. The definition of a crime and the applicable sanction, by establishing differential treatment, are subject to a test of proportionality, and they must be reasonable and appropriate.

In addition to the above criteria, the Constitutional Court has emphasized the constitutional corpus as another check on the legislative branch’s powers to enact criminal law; the legislature may not disregard the mandates imposed by international treaties, which strictly speaking form part of the corpus.

Therefore, no criminal law may be passed that disregards fundamental rights, is not appropriate for protecting constitutional rights, or is disproportionate or unreasonable.

The principle and right to human dignity as a check on the legislative branch’s authority to enact criminal law
In the Colombian legal system, human dignity plays three different roles: (i) as founding principle of the legal system and a constitutional value; (ii) as a constitutional principle; and (iii) as autonomous fundamental law. However, the principle and the fundamental right to human dignity overlap in the sphere of protected acts. Therefore, human dignity protects (a) autonomy, or the possibility of making one’s own life and to self-determination according to one’s own characteristics (living as one wishes); (b) certain tangible material conditions for existence (living well); and (c) intangibles such as legal rights, physical safety, and moral integrity (living free of humiliation).

The legal concept of human dignity in the sphere of individual autonomy consists of the freedom to choose a certain lifestyle within the framework of an individual’s social environment, which entitles each person to enjoy as much freedom as possible and be subjected to the fewest possible restrictions.

Human dignity in the sphere of material conditions for existence consists of the actual and effective ability to access certain goods and services that allow every human being to function within society according to his or her particular conditions and qualities, with the objective of inclusion and the actual ability to play a real role in society.

Finally, the third sphere of human dignity is a life free of humiliation, meaning that every person may be socially active, and any act leading to social exclusion constitutes a violation of human dignity.

In Constitutional Court case law, human dignity for women includes the protection of decisions related to their life plan, including reproductive autonomy and the guarantee of moral intangibles, which in practice manifests as a prohibition on assigning stigmatized gender roles or deliberately inflicting pain and suffering.

The right to free development of personality as a limit on the legislative branch’s authority in criminal law
The right to free development of personality consists of individual autonomy and those life matters that are incumbent only on the individual. This constitutional principle is binding on all public actors, who are prohibited from interfering in this private sphere, because deciding for a person means brutally depriving her of her ethical status and relegating her to the status of an object or a tool to be used for ends not of her choosing. The right to free development of personality is related to the sphere of an individual’s decisions, which make up her life plan or plan for personal fulfillment.

This also includes every person’s freedom to decide her marital status free of coercion, including whether to contract marriage, live in a domestic partnership, remain single, or choose some other option.

The right to motherhood means that motherhood is considered a “life choice” that is up to each woman. Therefore, it is unconstitutional for the state, family, employer, or school to set rules that discourage or restrict a woman’s free choice regarding motherhood, or to establish any rule, general or particular, that may interfere with motherhood. Therefore, in light of the right to free development of personality and the special circumstances of motherhood, any discriminatory or unfavorable treatment of a woman when she decides to become a mother is manifestly unconstitutional

Likewise, the sphere of autonomy in decision-making includes the person’s right to choose whether or not to receive a particular medical treatment, even when the patient’s choice runs counter to medical advice.

The right to free development of personality therefore constitutes a limit on the legislative branch’s authority. It may not impose perfectionist measures that constitute a disproportionate restriction of this right.

The rights to health, life, and personal integrity as limits on the legislative branch’s authority in criminal law
The Constitutional Court has held in its case law that human life does not consist merely of biological survival, but that it also requires certain minimal conditions of dignity. Because the human person constitutes an integral whole, including purely material, physical, and biological aspects as well as spiritual, mental, and psychic ones, all these factors must be treated as essential components of the makeup of the person in order for life to exist in a state of true human dignity.

The right to health includes not only physical health, but mental health as well. In the case of women, reproductive health must be included as well, as it relates to situations of miscarriage or abortion, situations in which the woman’s life may be at risk or she may need treatment to recover her reproductive functions for a variety of reasons.

The special treatment afforded to pregnant women by the Constitution is based on the rights to life, personal integrity, human dignity, and free development of personality, as well as the principle of the family as a basic institution of society. This right to family includes the right to decide freely the number and spacing of children. The right to health, besides the healthcare benefits that it implies, also constitutes a right to defense against interference by the state or by third parties who jeopardize or violate this right. It is therefore unconstitutional for the legislature to adopt measures that disproportionately restrict a person’s right to health, even when such measures are adopted to protect constitutional rights that third parties consider relevant.

Review of the instant case
The Constitutional Court set out to review in first instance the constitutionality of Article 122 of the Penal Code, which criminalizes abortion in all cases.

In the instant case, the life of the unborn fetus is held on the one hand to be a constitutionally protected right, meaning that any decision that the pregnant woman makes regarding the termination of the life in gestation goes beyond the sphere of her own autonomy and concerns the state and the legislature.

On the other hand, the pregnant woman enjoys several rights, principles, and values, including the rights to human dignity, free development of personality, personal integrity, life, and health.

However, even if the protection of the unborn fetus by criminal sanction, specifically by criminalizing abortion, is found to be constitutional, the criminalization of abortion in all circumstances means that one of the two legally protected rights at issue, the life of the unborn, will prevail in all cases over the other. This, in turn, means a complete disregard for the fundamental rights and dignity of the pregnant woman, relegating her status to that of a mere container for life in gestation, something which can by no means be considered constitutional.

For the Court, perfectionist measures, defined as the imposition of a certain model of virtue or human excellence, are unconstitutional, because when authorities sanction a person because he refuses to accept the ideals imposed by the state without violating the constitution or the rights of third parties, this constitutes a violation of human dignity, individual autonomy, and free development of personality.

When the pregnancy places the life or health of the woman at risk
The Constitutional Court has held that in cases in which the pregnant woman’s life and health are threatened, it is clearly excessive to require the sacrifice of an existing life for the protection of a life in formation, as this would mean a lack of equivalency between the mother’s right to life and health and the protection of the embryo.

Therefore, the state may not require the individual, the pregnant woman in the instant case, to take heroic measures and sacrifice her own rights for those of third parties or for the public interest. A requirement of this magnitude is unenforceable, even when the pregnancy is the result of a consensual act, particularly in light of Article 49 of the Constitution, which establishes that every person has the obligation to attend to the integral care of his or her health and that of his or her community.

These protections apply not only in the event of risk to the pregnant woman’s physical health, but also to those cases in which her mental health is jeopardized, because the right to health under Article 12 of the International Covenant on Civil and Political Rights means the right to enjoy the greatest possible physical and mental health, and pregnancy may lead to severe anxiety or even serious mental illness that may justify a termination authorized by medical certification.

Fetal deformities incompatible with life
The Constitutional Court determined that if fetal deformations are such that it is highly improbable that the fetus will survive, a medical certification is required. In such cases, the state duty to protect the life of the unborn is diminished, because the life in question is itself not viable. The woman’s rights therefore prevail and the legislature may not use criminal laws to require her to take the pregnancy to term when the fetus is shown by medical certification to be in such a condition.

To require a woman to continue with a pregnancy under these circumstances would be to make demands of her that go beyond what can normally be demanded of a pregnant woman, as she would have to bear the burden of pregnancy and then the subsequent loss of the life of a fetus that was so seriously deformed that it could not survive. This would also mean subjecting her to cruel, inhuman, and degrading treatment, which would affect her right to human dignity.

Pregnancy resulting from rape or incest
The Constitutional Court has held that punishing a woman who becomes pregnant as a result of rape or incest is a disproportionate measure, because the absolute supremacy of the protection of unborn life means total disregard for the human dignity and free development of personality of the pregnant woman whose pregnancy is not the fruit of a free and consensual choice, but the result of arbitrary acts committed with disregard for her status as an autonomous subject of law, acts which are themselves punishable as crimes under multiple articles of the Penal Code.

A woman who becomes pregnant as the result of such a gross violation of her fundamental rights cannot be legally required to take heroic measures such as shouldering the enormous burden that continuing with the pregnancy would entail. Nor may her value as a subject of law be disregarded by requiring her to passively allow her body to be reduced to a tool for procreation against her will. Furthermore, sexual violence violates women’s reproductive rights, because it jeopardizes their health and sexual and reproductive autonomy, particularly the rights to physical integrity and the control over their own sexuality and reproduction, as well as their right to health, including physical, psychological, reproductive, and sexual health.

Pregnancy resulting from incest, in addition to also being the product of criminally punishable acts under the Colombian legal system, seriously jeopardizes women’s autonomy. By destabilizing the family, it is also contrary to another constitutional principle, that of solidarity.

For the above reasons, punishing a woman in these circumstances is a disproportionate and unreasonable restriction on women’s liberty and dignity. The only requirement in such cases is that the criminal conduct must be duly reported to the appropriate authorities.

Finally, the Court established that in order to fulfill the above requirements, it is sufficient to file the appropriate criminal complaint or medical certification in order for the woman and the doctor who performs the abortion to avoid criminal liability. Each of the grounds for a decriminalized abortion is separate and independent; therefore, in cases of rape or incest, for instance, it need not be shown that the woman’s life or health is at risk or that the fetus is not viable. In cases of rape, the woman’s good faith and responsibility suffice, and she need only show a copy of the police report to the doctor.

The Court emphasized that the legislature may not establish further requirements that impose a disproportionate burden on the rights of women or barriers to access to abortion services.

On the other hand, the Court emphasized that conscientious objection is not an absolute right held by legal entities or the state. This right may be recognized only for natural persons, which means that clinics, hospitals, healthcare centers, or other abortion service providers may not claim conscientious objection when the woman is entitled to request an abortion. Further, conscientious objection is based on well-founded religious convictions, is not meant as an opportunity for the treating physician to interject his position for or against abortion, and may not be used to disregard women’s fundamental rights. Therefore, in the event that a doctor properly claims a conscientious objection to performing an abortion, he is required to immediately refer the woman to another doctor who can perform the abortion. This does not preclude subsequent review of whether the conscientious objection was appropriate and relevant via the mechanisms established by the medical profession.

Minors under fourteen
The plaintiffs challenged the constitutionality of the term “any person under the age of 14” in article 123 of the Penal Code, which sanctions abortion without the woman’s consent or in the case of girls younger than fourteen. This provision establishes the presumption that girls under fourteen lack the ability to consent to an abortion, and for this reason, their consent is not relevant in terms of criminal sanction. This shows that the legal right that the criminal sanction is established to protect is not that of the life in gestation, but the pregnant girl under fourteen years of age.

Regarding consent by girls under fourteen, the Court has repeatedly held that though protective measures for minors are justified in the Constitution, they must always be proportionate and must never take precedence over the rights, values, and principles at issue.

Along these lines, the Court has established that minors do not totally lack autonomy, and so their wishes should not only be taken into account, but respected. The Court recognized the autonomy of minors to make certain medical decisions, even against their parents’ wishes.

It has therefore been recognized that minors have the right to free development of personality and the ability to consent to medical treatments, even highly invasive ones. In this sense, the Court has dismissed the notion that simple objective criteria, such as age, form the sole basis to establish the extent of minors’ ability to freely consent to medical treatments. Therefore, any protective measure that strips the minor’s consent of legal relevance, as in the challenged language in Article 123 of the Penal Code, is unconstitutional, because it runs completely counter to minors’ free development of personality, autonomy, and dignity. Furthermore, the measure is irrational because it cancels the rights of the woman seeking an abortion to ensure the life or health of the pregnant minor.

Necessity
Finally, the plaintiffs challenged the constitutionality of Article 32, Section 7 of the Penal Code, alleging that the state of necessity under this provision violates women’s fundamental rights to life and personal integrity, because women are forced to seek a clandestine abortion, with the humiliation and potential danger to her personal safety that it entails.

However, the Court held that this section is a generic provision that applies not only to the crime of abortion, but more broadly to all acts punishable as crimes. Therefore, if it were declared unenforceable, other situations in which it applies would no longer have recourse to this defense. Further, once the Court had determined that abortion in the above circumstances did not constitute a crime, these acts were no longer even defined as crimes and there would be no need to determine criminal liability in the first place. The statutory language under review was therefore determined to be constitutional.

First. Motions to dismiss the petition were denied for lack of foundation.

Second. Article 32, Section 7 of Law 599 of 2000 (Penal Code) was found constitutional, because the necessity provision was generic in nature.

Third. Article 122 of Law 599 of 2000 (Penal Code) was found constitutional with the understanding that the crime of abortion is not committed when the termination of pregnancy is performed in accordance with the woman’s wishes and under the following circumstances:

1. When continuing the pregnancy constitutes a danger to the life or health of the woman, as certified by a doctor;
2. When the fetus has serious deformations incompatible with life, as certified by a doctor; and
3. When the pregnancy is the result of an act, duly reported, constituting sexual abuse or a nonconsensual or abusive sex act, non-consensual artificial insemination or implantation of a fertilized ovule, or incest.

Fourth. The term “any person under the age of 14” as it appears in Article 123 of Law 599 of 2000 (Penal Code) was found unconstitutional.

Fifth. Article 124 of Law 599 of 2000 (Penal Code), which allowed the sentence to be reduced in case of rape or incest, was found unconstitutional.