Colombia’s Abortion Decision: Abortion as a Matter of Human Rights

Andrea Lynch

In May 2006, Colombia's Constitutional Court handed down a historic decision, voting 5-3 to decriminalize abortion in cases where a pregnant woman's life or health was in danger, in cases where the pregnancy was a result of rape or incest, and in cases of severe fetal malformation. The decision, which came in response to a case brought by Colombian lawyer Monica Roa, was a watershed for Colombia—one of the few countries in the world where abortion had been illegal under any circumstances up until then, despite the fact that between 350,000 and 400,000 Colombian women still sought clandestine abortions every year.

First, it grounded the decision in the norms established by a number of international and regional human rights instruments to which Colombia (among others) is accountable. And second, it placed women's human rights, with a particular emphasis on their sexual and reproductive rights, at the center of its justification for decriminalizing abortion. Which makes it, like, 80 times more progressive than Roe v. Wade, by the way. Women's Link Worldwide, the organization that supported Roa's case, has recently translated the most groundbreaking excerpts of the Court's 600-page decision into English, and posted the document on their website together with an excellent foreword by Rebecca J. Cook, a feminist and human rights scholar at the University of Toronto. Highlights follow.

In May 2006, Colombia's Constitutional Court handed down a historic decision, voting 5-3 to decriminalize abortion in cases where a pregnant woman's life or health was in danger, in cases where the pregnancy was a result of rape or incest, and in cases of severe fetal malformation. The decision, which came in response to a case brought by Colombian lawyer Monica Roa, was a watershed for Colombia—one of the few countries in the world where abortion had been illegal under any circumstances up until then, despite the fact that between 350,000 and 400,000 Colombian women still sought clandestine abortions every year.

First, it grounded the decision in the norms established by a number of international and regional human rights instruments to which Colombia (among others) is accountable. And second, it placed women's human rights, with a particular emphasis on their sexual and reproductive rights, at the center of its justification for decriminalizing abortion. Which makes it, like, 80 times more progressive than Roe v. Wade, by the way. Women's Link Worldwide, the organization that supported Roa's case, has recently translated the most groundbreaking excerpts of the Court's 600-page decision into English, and posted the document on their website together with an excellent foreword by Rebecca J. Cook, a feminist and human rights scholar at the University of Toronto. Highlights follow.

1. The Court's decision recognizes the value of life, but makes an essential distinction between the "claimed legal right to life" (which belongs only to born human beings) and the "value of life" (which applies to prenatal, potential life). To wit:

"Life" and "the right to life" are different phenomena. Human life passes through various stages and manifests in various forms, which are entitled to different forms of legal protection. Even though the legal system protects the fetus, it does not grant it the same level or degree of protection it grants a human person.

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So, for example, a law that prioritized the value of prenatal life over a pregnant woman's right to life (like, say, Nicaragua's new law banning therapeutic abortion), would be…what's the phrase…totally unconstitutional? (Nicaraguan and North Dakotan legislators, please proceed directly to Section 10.1: The unconstitutionality of a total prohibition of abortion.)

2. The Court's decision draws on the following hard-won, widely supported international and regional instruments: the International Conference on Population and Development Programme of Action, the Fourth World Conference on Women Platform for Action, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, ratified by 185 countries but still unratified by the United States), the Convention on the Rights of the Child (CRC, ratified by every UN member state but Somalia and the United States), the American Convention on Human Rights, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.

3. The Court's decision specifically highlights the fact that pregnancy is often used as a pretext for curtailing or suspending women's human rights, a practice that flagrantly violates:

  • The right to dignity, liberty and free development of the individual person,
  • The right to health, life, bodily integrity and reproductive autonomy, and
  • The right to equality with men.

The decision also notes that criminalizing health care that only women need, such as all abortion services, is a violation of the right to sexual nondiscrimination under CEDAW. High rates of maternal mortality are also evidence of disrespect for women's human rights, since they indicate a lack of commitment to ensuring that women don't regularly wind up dead just because they're women. Additionally, since women's right to abortion is grounded in their human rights, appointing third parties (such as spouses, partners, and parents) to mediate that decision is inappropriate (did you hear that, more than half of U.S. states and Samuel Alito?) And finally, since denying women access to safe abortion amounts to a violation of their human rights, doctors have an ethical and professional obligation to ensure that women aren't denied abortions over matter s of individual conscience. So if you as a doctor can't bring yourself to perform a safe procedure, you as a doctor are obligated to ensure that someone else will. Ain't human rights grand?

4. Finally, instead of casting abortion as a tragic-but-I-guess-under-certain-circumstances-necessary evil, the Court's decision recognizes it as a fundamental part of women's sexual and reproductive rights, which are central to gender equality, human dignity, social justice, and democracy. Listen to this:

To conclude, women's sexual and reproductive rights have finally been recognized as human rights, and, as such, they have become part of constitutional rights, which are the fundamental basis of all democratic states. Sexual and reproductive rights also emerge from the recognition that equality in general, gender equality in particular, and the emancipation of women and girls are essential to society. Protecting sexual and reproductive rights is a direct path to promoting the dignity of all human beings and a step forward in humanity's advancement towards social justice.

Right on. Read the complete English highlights here (PDF). You can also download the full decision (all 600 pages of it) in Spanish on the Women's Link Worldwide website. Flights to Colombia can be booked here.

News Human Rights

Feds Prep for Second Mass Deportation of Asylum Seekers in Three Months

Tina Vasquez

Those asylum seekers include Mahbubur Rahman, the leader of #FreedomGiving, the nationwide hunger strike that spanned nine detention centers last year and ended when an Alabama judge ordered one of the hunger strikers to be force fed.

The Department of Homeland Security (DHS), for the second time in three months, will conduct a mass deportation of at least four dozen South Asian asylum seekers.

Those asylum seekers include Mahbubur Rahman, the leader of #FreedomGiving, the nationwide hunger strike that spanned nine detention centers last year and ended when an Alabama judge ordered one of the hunger strikers to be force-fed.

Rahman’s case is moving quickly. The asylum seeker had an emergency stay pending with the immigration appeals court, but on Monday morning, Fahd Ahmed, executive director of Desis Rising Up and Moving (DRUM), a New York-based organization of youth and low-wage South Asian immigrant workers, told Rewire that an Immigration and Customs Enforcement (ICE) officer called Rahman’s attorney saying Rahman would be deported within 48 hours. As of 4 p.m. Monday, Rahman’s attorney told Ahmed that Rahman was on a plane to be deported.

As of Monday afternoon, Rahman’s emergency stay was granted while his appeal was still pending, which meant he wouldn’t be deported until the appeal decision. Ahmed told Rewire earlier Monday that an appeal decision could come at any moment, and concerns about the process, and Rahman’s case, remain.

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An online petition was created in hopes of saving Rahman from deportation.

ICE has yet to confirm that a mass deportation of South Asian asylum seekers is set to take place this week. Katherine Weathers, a visitor volunteer with the Etowah Visitation Project, an organization that enables community members to visit with men in detention at the Etowah County Detention Center in Gadsden, Alabama, told Rewire that last week eight South Asian men were moved from Etowah to Louisiana, the same transfer route made in April when 85 mostly Muslim South Asian asylum seekers were deported.

One of the men in detention told Weathers that an ICE officer said to him a “mass deportation was being arranged.” The South Asian asylum seeker who contacted Weathers lived in the United States for more than 20 years before being detained. He said he would call her Monday morning if he wasn’t transferred out of Etowah for deportation. He never called.

In the weeks following the mass deportation in April, it was alleged by the deported South Asian migrants that ICE forcefully placed them in “body bags” and that officers shocked them with Tasers. DRUM has been in touch with some of the Bangladeshis who were deported. Ahmed said many returned to Bangladesh, but there were others who remain in hiding.

“There are a few of them [who were deported] who despite being in Bangladesh for three months, have not returned to their homes because their homes keep getting visited by police or intelligence,” Ahmed said.

The Bangladeshi men escaped to the United States because of their affiliations and activities with the Bangladesh Nationalist Party (BNP), the opposition party in Bangladesh, as Rewire reported in April. Being affiliated with this party, advocates said, has made them targets of the Bangladesh Awami League, the country’s governing party.

DHS last year adopted the position that BNP, the second largest political party in Bangladesh, is an “undesignated ‘Tier III’ terrorist organization” and that members of the BNP are ineligible for asylum or withholding of removal due to alleged engagement in terrorist activities. It is unclear how many of the estimated four dozen men who will be deported this week are from Bangladesh.

Ahmed said that mass deportations of a particular group are not unusual. When there are many migrants from the same country who are going to be deported, DHS arranges large charter flights. However, South Asian asylum seekers appear to be targeted in a different way. After two years in detention, the four dozen men set to be deported have been denied due process for their asylum requests, according to Ahmed.

“South Asians are coming here and being locked in detention for indefinite periods and the ability for anybody, but especially smaller communities, to win their asylum cases while inside detention is nearly impossible,” Ahmed told Rewire. “South Asians also continue to get the highest bond amounts, from $20,000 to $50,000. All of this prevents them from being able to properly present their asylum cases. The fact that those who have been deported back to Bangladesh are still afraid to go back to their homes proves that they were in the United States because they feared for their safety. They don’t get a chance to properly file their cases while in detention.”

Winning an asylum claim while in detention is rare. Access to legal counsel is limited inside detention centers, which are often in remote, rural areas.

As the Tahirih Justice Center reported, attorneys face “enormous hurdles in representing their clients, such as difficulty communicating regularly, prohibitions on meeting with and accompanying clients to appointments with immigration officials, restrictions on the use of office equipment in client meetings, and other difficulties would not exist if refugees were free to attend meetings in attorneys’ offices.”

“I worry about the situation they’re returning to and how they fear for their lives,” Ahmed said. “They’ve been identified by the government they were trying to escape and because of their participation in the hunger strike, they are believed to have dishonored their country. These men fear for their lives.”

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.