C-355/2006
Colombia, Constitutional Court

C-355/2006

DATE 10-05-2006DOWNLOAD LEGAL DECISION

Judges:

Jaime Araujo Rentería

Jaime Araujo Rentería

Rodrigo Escobar Gil

Rodrigo Escobar Gil

Alfredo Beltrán Sierra

Alfredo Beltrán Sierra

Manuel José Cepeda

Manuel José Cepeda

Marco Gerardo Monroy Cabra

Marco Gerardo Monroy Cabra

Humberto Sierra Porto

Humberto Sierra Porto

Álvaro Tafur Galvis

Álvaro Tafur Galvis

Clara Inés Vargas

Clara Inés Vargas

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Topics:

Abortion

Related standards:

Political Constitution of Colombia (Colombia) Article 1

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 1

Colombia is a legal social state organized in the form of a unitary republic, decentralized, with the autonomy of its territorial units, democratic, participatory and pluralistic, based on respect of human dignity, on the work and solidarity of the individuals who belong to it, and the predominance of the general interest.
Criminal Code (Colombia) Article 123

RELATED STANDARDS

Criminal Code (Colombia) Article 123

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Political Constitution of Colombia (Colombia) Article 93

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 93

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International Covenant on Civil and Political Rights Article 7

RELATED STANDARDS

International Covenant on Civil and Political Rights Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
International Covenant on Civil and Political Rights Article 6

RELATED STANDARDS

International Covenant on Civil and Political Rights Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Criminal Code (Colombia) Article 124

RELATED STANDARDS

Criminal Code (Colombia) Article 124

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Criminal Code (Colombia) Article 122

RELATED STANDARDS

Criminal Code (Colombia) Article 122

Abortion. A woman who induces an abortion or allows another to cause on, will be sentenced to a prison term between 1 and 3 years. The same sentence will be applied to someone, who with the consent of the women, carries out the aforementioned conduct.
Political Constitution of Colombia (Colombia) Article 243

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 243

The decisions made by the Court in exercise of its powers of judicial review are constitutional res judicata. The authorities may not reenact a substantively similar legal act to one previously declared invalid for substantive reasons, while the constitutional provisions that served to challenge the impugned legal act remain in force.
Political Constitution of Colombia (Colombia) Article 12

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Political Constitution of Colombia (Colombia) Article 12

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Political Constitution of Colombia (Colombia) Article 16

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 16

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Political Constitution of Colombia (Colombia) Article 43

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 43

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Political Constitution of Colombia (Colombia) Article 16

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 16

All persons are entitled to their free personal development without limitations other than those imposed by the rights of others and those which are prescribed by the legal system.
Political Constitution of Colombia (Colombia) Article 11

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 11

The right to life is inviolable. There will be no death penalty.
Political Constitution of Colombia (Colombia) Article 49

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 49

Public health and environmental protection are public services for which the state is responsible. All individuals are guaranteed access to services that promote, protect, and rehabilitate public health. It is the responsibility of the state to organize, direct, and regulate the delivery of health services and of environmental protection to the population in accordance with the principles of efficiency, universality, and cooperation, and to establish policies for the provision of health services by private entities and to exercise supervision and control over them. In the area of public health, the state will establish the jurisdiction of the nation, territorial entities, and individuals, and determine the shares of their responsibilities within the limits and under the conditions determined by law. Public health services will be organized in a decentralized manner, in accordance with levels of responsibility and with the participation of the community. The law will determine the limits within which basic care for all the people will be free of charge and mandatory. Every person has the obligation to attend to the integral care of his/her health and that of his/her community.
Political Constitution of Colombia (Colombia) Article 42

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 42

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Political Constitution of Colombia (Colombia) Article 13

RELATED STANDARDS

Political Constitution of Colombia (Colombia) Article 13

All individuals are born free and equal before the law and are entitled to equal protection and treatment by the authorities, and to enjoy the same rights, freedoms, and opportunities without discrimination on the basis of gender, race, national or family origin, language, religion, political opinion, or philosophy. The state will promote the conditions necessary in order that equality may be real and effective will adopt measures in favor of groups which are discriminated against or marginalized. The state will especially protect those individuals who on account of their economic, physical, or mental condition are in obviously vulnerable circumstances and will sanction any abuse or ill-treatment perpetrated against them.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 12

RELATED STANDARDS

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 12

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. 2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Criminal Code (Colombia) Article 32

RELATED STANDARDS

Criminal Code (Colombia) Article 32

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WHY IT MATTERS:

Article 243 of the Colombian Constitution provides that the Constitutional Court’s rulings on constitutionality constitute res judicata and are binding on all judicial officers.

This ruling places Colombia among the most advanced countries in the region in terms of sexual and reproductive rights. It is a landmark ruling, not only because it effects a major legal change, but also because the analysis undertaken by the Court opens important doors in terms of the recognition of women’s reproductive rights and the implementation of international human rights standards in domestic contexts.

The decision was followed by the issuance of the only regulations in the region that follow the World Health Organization’s recommendations. To learn more about the process of implementation of the ruling, click here

In April 2005, Women's Link Worldwide filed a petition of unconstitutionality with the Constitutional Court of Colombia, arguing that the criminal law that classified abortion as a crime under any circumstances should be found unconstitutional. On May 10, 2006, the Court issued a ruling establishing that the criminalization of abortion under all circumstances implied supremacy of the life of the unborn in all cases and the resulting total disregard for pregnant women’s fundamental rights, as well as disregard for their human dignity by reducing them to simple containers for gestation.
In April 2005, Women's Link Worldwide filed a petition of unconstitutionality with the Constitutional Court of Colombia, requesting a finding that the criminal law that classified abortion as a crime under any circumstances was unconstitutional. Click here for a video on the action and related documents.
Lack of res judicata on content or form in previous rulings by the Constitutional Court
Constitutional res judicata is a legal concept that seeks to protect legal certainty; however, its scope is limited by public guarantees to actions on constitutionality, and the need for change and evolution in the law. Thus, case law binds the material res judicata to precedent based on the constitutional judge’s awareness of the need to be consistent with previous rulings, for purposes of judicial certainty as well as respect for the principle of equality, because it is unfair for cases with similar facts to be decided differently. This does not mean that case law is frozen, but that in first instance, prevalence is given first to precedent to prevent injustices by the constitutional judge.

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.

The Court found as follows:

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.

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Olimpo de Jesus Sánchez Caro, and others (forced abortions)
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Olimpo de Jesus Sánchez Caro, and others (forced abortions)

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Habeas Corpus 124.306
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