Colombia rides the green wave
Latin America’s ‘green wave’ of progress in claiming abortion rights shows no sign of stopping. On 21 February the Colombian Constitutional Court decriminalised abortion on demand up to 24 weeks. This long-awaited ruling was won through a decades-long struggle by the feminist movement – but it unleashed an instant anti-rights backlash. The Colombian feminist movement is getting ready to resist attempts by anti-rights groups to reinstate restrictive laws, not least by intensifying public engagement so that opinions shift to help protect newly realised rights.
The evening of 21 February was one of celebration for the hundreds of women gathered outside Colombia’s Constitutional Court in Bogotá. They jumped, danced, chanted and cried together. They had just won victory in a decades-long struggle, as the Court responded to a petition brought by civil society by decriminalising abortion in the first 24 weeks of pregnancy.
The ‘green wave’ that began in Argentina, where it led to the legalisation of abortion in 2020, continues to spread across Latin America. Driven by a new generation of feminist activists, the ‘daughters’ revolution’ is winning profound social change from Chile – where women are bringing their demands into the most inclusive constitutional process ever – to Mexico, where last September the Supreme Court ruled it unconstitutional for states to criminalise abortion.
Swarms of young women, high-schoolers and teenagers have taken up the battle cry of their mothers and grandmothers – ‘sex education to decide, contraceptives not to have abortions, legal abortion so as not to die’. They have taken their call to the streets and made it massive.
Their effervescent optimism and unbridled energy have claimed victories but also unleashed conservative backlash. Anti-rights groups, in Colombia and beyond, have reacted instantly to gains, attempting to reverse them. But the green scarves that activists wear around their necks, knotted around their wrists or tied to their backpacks – a sign of solidarity, a declaration of principles, an acknowledgment of shared dreams and a wink of complicity – are here to stay.
#UnDerechoEs garantías para decidir #AbortoLegal sin importar si se es:— Oriéntame (@Orientame) February 22, 2022
rural o urbana
adulta o menor de edad
universitaria o analfabeta
gerente o desempleada
colombiana o extranjera
mestiza, indígena o afro
del norte o del sur pic.twitter.com/4heDHKCz6w
From crime to right
Abortion on three grounds – rape, risk to the pregnant person’s health or life and foetal malformation – had been legalised by Colombia’s Constitutional Court in 2006; time limits on these were also abolished in its recent ruling.
Before the ruling, those undergoing or facilitating an abortion in any other circumstances were still subjected to prison sentences of up to four and a half years.
The system based on exceptions was not only cumbersome, slow and inefficient, but also profoundly unfair. Educated, wealthier, urban women were more likely to be able to have an abortion under one of the legal exceptions, while less educated, poorer and rural women would most likely not have any access. According to women’s rights groups tracking abortion cases, an overwhelming majority of the hundreds of prosecutions that take place in Colombia every year target young, poor, rural women.
But from now on, no woman in Colombia will be prosecuted for having an abortion within the wide parameters of the Constitutional Court ruling, and no doctor will be criminally charged for providing one.
The first legal abortion under the ruling took place just two days later, and it showed who will benefit. It was performed in a Bogotá clinic named Oriéntame (‘Guide me’), on a 34-year-old migrant woman who already had four children, desperate and unaware of her newly acquired rights and options – it was the clinic’s staff who informed her about them. Looking forward, proactivity to counter disinformation and ensure access will be key.
The Constitutional Court ruling urges Congress to legislate, and the government to regulate the provision of abortion and related health services. A Court statement explains that new policies should include the provision of clear information to pregnant women about the options available to them, the elimination of any obstacles to the exercise of their right to choose, access to family planning and contraception, sex education programmes and support programmes for pregnant women.
Is abortion still a crime?
Abortion campaigners highlight the fact that the Colombian Constitutional Court did not – and could not – remove the crime of abortion from the Criminal Code. This is a pending issue that will still take much feminist advocacy to make Congress tackle it.
According to Ana Cristina González – a medical doctor, founder of Mesa por la Vida y Salud de las Mujeres (Coalition for Women’s Lives and Health) and a representative of Causa Justa (Just Cause), the coalition that brought the complaint to the Constitutional Court – as long as abortion retains an association with criminality, abortion stigma will persist, and vulnerable women will not be able to access this basic health service safely and in a dignified way.
Abortion rights activists insist that defining abortion as a crime is absurd. Crimes are normally codified with the expectation that those found guilty of committing them will make restitution to society – but what kind of restitution could a woman provide after terminating a pregnancy? And why would society expect restitution for a woman’s private decision over her body and life?
Advocates have also consistently shown that codifying abortion as a crime is ineffective, because women will continue to have abortions regardless, as well as counterproductive, because they will do so even at risk to their lives. It is also discriminatory, because criminalisation is designed to punish women, and unfair because it disproportionately affects those women who are already most vulnerable as a result of overlapping layers of discrimination.
This is why, as Ana Cristina puts it, ‘we will continue to fight so that this crime, which is obsolete, ceases to exist. Women are full moral subjects capable of making decisions about our own lives’.
A civil society victory
The ruling comes after years of feminist advocacy. The petition, submitted in September 2020 by Causa Justa, a coalition of over 90 women’s rights organisations, challenged the provisions of the Criminal Code that make abortion a crime.
Abortion advocates followed a smart strategy: instead of proposing a new law that would have to go through Congress, where conservative parties have considerable influence, they chose to challenge the constitutionality of the existing law, which they argued violated the rights of women who were prosecuted or experienced medical complications due to clandestine abortions.
Their main argument was that the stigmatisation and barriers caused by the criminalisation of abortion under most circumstances prevented even those women legally entitled to an abortion getting one. Because of fear of prosecution, either they didn’t request an abortion or doctors refused to provide one. This led to women, particularly in rural, isolated and low-income communities, either carrying unwanted pregnancies to term or resorting to desperate measures that could cost them their lives. Every year, they highlighted, at least 70 Colombian women die as a result of unsafe abortions, and thousands of girls aged 10 to 14 are forced into motherhood.
This left the decision in the hands of a Constitutional Court that is viewed as a liberal beacon: in 2006 it paved the way by allowing abortion on three grounds, and it legalised same-sex marriage in 2016.
The anti-rights reaction
The hundreds of young women in green scarves weren’t the only ones outside the Supreme Court on 21 February. Dozens of anti-abortion activists, mostly linked to evangelical Christian groups, were there too. Both groups mobilised for months, trying to sway a divided court that ultimately split five votes for and four against.
Immediate social media backlash focused on the 24-week deadline for legal abortion. This revealed a deliberate misunderstanding of the rationale behind the limit, based on global research findings showing that over 90 per cent of abortions are performed during the first trimester, with numbers decreasing sharply with every additional week.
Colombian anti-rights groups have plenty of spokespeople in circles of power. As the ruling was issued, they instantly announced they would take action to reverse it. In unison several politicians, starting with conservative President Iván Duque, proposed calling a referendum on the issue.
President Duque reacted to the news by calling himself ‘pro-life’ and stating that ‘life starts at conception’. He called the Constitutional Court’s decision ‘atrocious‘ and complained that ‘five people cannot try to provide a guideline for an entire nation on such a sensitive issue’. These five people were the judges whose job is to safeguard the constitution – not the kind of people who make decisions on a whim. President Duque purposefully propagated disinformation as he stated that the Court treated abortion ‘almost as a contraceptive practice’.
Several others joined in, including an ex-president and a number of legislators of Duque’s right-wing Democratic Centre Party, as well as from the Conservative Party, including the president of Congress, and even from the Liberal Party, which overall has a favourable position on abortion.
The idea of a referendum prompts alarming memories: Colombia’s most recent referendum came in 2016 when people were asked to endorse the peace agreement between the government and the guerrillas of the Revolutionary Armed Forces of Colombia. The referendum was hijacked by anti-rights groups and populist politicians who mobilised hysteria in the face of the agreement’s gender perspective on peacebuilding.
What lies ahead
Two days after the Constitutional Court judgment, anti-rights politician Sara Castellanos Rodríguez – former councillor of Bogotá, senate candidate and daughter of the founders of International Charismatic Mission, an evangelical megachurch – announced on Twitter that she had registered the #ReferendoPorLaVida (‘referendum for life’) campaign.
However, a referendum seems a long shot. To submit a referendum proposal, a promoting committee needs to be registered, which then has six months to collect signatures from five per cent of registered voters – approximately 1.9 million people. If this threshold is reached, signatures are delivered to the Registrar’s Office, which has 45-days to review the forms and check all constitutional and legal requirements have been met. The initiative then goes to Congress for approval, and if passed, to the Constitutional Court – the same court that has just lifted the abortion ban – to ensure all requirements have been met and the process may go ahead.
If the process were to move forward, it would overlap with legislative elections scheduled to be held in March and the campaign for the presidential election that will take place in May, with a potential runoff in June. If enough signatures were collected, approval would likely fall on a newly elected Congress – in which, opinion polls suggest, political groups that promote abortion rights will increase their share of seats.
The presidential race remains open, but there’s a chance it will also bring change. Anti-establishment sentiments are growing, and left-wing senator and former Bogotá mayor Gustavo Petro is climbing in the polls.
Meanwhile Colombian public opinion remains sharply divided on abortion. According to a recent poll, more than 60 per cent believe abortion should be legal in at least some circumstances, but support for abortion on demand stands at only around 26 per cent. To ensure that the recently won right continues to stand, the women’s rights movement needs to work with public opinion to bring about an irreversible cultural shift to match the legal change. Colombian feminists know this, and they are already working on it.
OUR CALLS FOR ACTION
The Colombian Congress must align current legislation with the Constitutional Court’s ruling, and the Colombian government must implement the policies required to make the ruling effective.
The women’s movement should keep up the pressure during electoral campaigns, forcing candidates to take a stand and pushing for the election of politicians who support women’s sexual and reproductive rights.
The women’s movement should remain on guard against the anti-rights backlash while working to strengthen support for abortion rights in case there is a referendum.
Cover photo by Guillermo Legaria Schweizer/Getty Images