A Closer Look at the Court Cases that Expanded Abortion Access in Mexico and Colombia

Since the start of the Green Wave movement, multiple countries across Latin America have liberalized their abortion laws. Ivonne Garza, Senior Associate at the O’Neill Institute for National Global Health Law at Georgetown University Law Center and Natalia Acevedo Guerrero, Senior Consultant with the Health and Human Rights Initiative at the O’Neill Institute, sit down to talk with us about recent court cases in Colombia and Mexico and how they have expanded access to abortion care across the region. 

The Green Wave, a liberal feminist movement which started in Argentina, increased mobilization in 2020 to decriminalize and destigmatize abortion across multiple countries in Latin America. This social movement paved the way for leaders to take abortion considerations to the top courts and set the groundwork for judicial and legislative change. 

In September 2021, three court cases changed the legal framework for abortion in the Federation of Mexico. The first case addressed the constitutionality of abortion regulations on states’ criminal codes and recognized the right to choose “without exception,” which includes abortion, sex education, family planning decision making, and more. The second case ruled that states were not allowed to regulate protections to the right to life that go beyond what the Mexican Constitution currently outlines. Lastly, the third case analyzed “conscientious objection” in the healthcare system and ruled it an individual right of medical personnel, but also that it could be limited to protect other fundamental rights.

In 2006, Colombia’s court referred to abortion in a favorable way. In this year, abortion was decriminalized in moments of when the pregnant person’s health and life at risk, pregnancy as a result of rape and incest, and when the fetus is incompatible with life. In 2022, the Colombian Court studied a new lawsuit that asked for the complete decriminalization of abortion in the country. Through four arguments, including 1) the proportionality of abortion criminalization; 2) the freedom and conscious of women and reproductive decisions; 3) the criminalization of abortion and the right to equality; and 4) the preventative purpose of criminal law, the Court concluded that the criminalization of abortion was in tension with the country’s affirmed right to health and reproductive rights. 

Both countries provide an opportunity for U.S. advocates to learn. By studying the history of Mexican and Colombian Court decisions, U.S. leaders can take away elements related to discrimination, equality, intersectional approaches, and legal frameworks that may be helpful for the fight for abortion rights at home.

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The Green Wave: How Abortion Rights Are Spreading Through Latin America

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: Welcome to this week's episode of rePROs Fight Back. I'm your host, Jennie Wetter, and my pronouns are she/her. So y'all, I'm going to keep my intro pretty short cuz we have a long episode today. But I want to talk about something that happened, uh, recently. I made a surprise visit to Wisconsin. So my mom has been serving on the board of the Beloit Health System for 20 years and has been chairman of the board for the last 11 and has done so many amazing things, uh, as chairman and has just, she's just amazing. So they had their last annual meeting with her as chairman of the board, uh, recently, and they decided that they wanted to honor all of her work and everything she's done for the board. And so they flew me in to surprise her and it was so much fun. Like one, it was just great to get this bonus trip to Wisconsin and time with my mom. Um, but two, it was just delightful to surprise her and see the look on her face when I walked in as they were doing, presenting her with her honors and doing it just honoring her for all of her amazing work. Uh, it was very exciting. And, you know, one of the things is they're building a new birthing center and they are naming, um, the family kitchen and relaxation area in, in honor of, of her, which is just so delightful. She's so excited about working on that project and, um, it, it just made me so happy to see it and to see her, her overwhelming emotions around that happening and having me there. And it was just really great, uh, to, to be part of that, just such a proud daughter moment. And then having, I don't know, I think it was like five days in Wisconsin and spending time with my mom and seeing some family and going and doing things that have to happen when I'm Wisconsin or when I'm in Wisconsin, like eating my weight in cheese curds or, I mean, really, I ate my weight in fried cheese curds and it was delightful. Uh, what else did I do that was very like, can only do in the Midwest? I went and got a big, uh, couple scoops of blue moon ice cream, which is something you can only get in the Midwest and made me so happy. And it was just delightful to, uh, to see my mom and to honor her. So, yeah, very exciting. It was nice to get the little quiet time away. Okay, so with that, let's turn to this week's episode because like I said, it's kinda a long one. I, um, have two amazing guests on. Um, so, and they are both from the Health and Human Rights Initiative at the O'Neill Institute for National and Global Health Law at Georgetown University Law Center. Sorry, that is a mouthful. But, uh, so they're both from there. And so I have Ivonne Garza and Natalia Acevedo Guerrero on to talk about, um, the abortion liberalization that has happened in Colombia and Mexico. And so it's a great conversation digging deep into, uh, those cases, um, the court cases and talking about how those cases were built. And so it was a very interesting conversation. I hope you enjoyed my conversation with Natalia and Ivonne.

Jennie: Hi Ivonne and Natalia, thank you so much for being here.

Ivonne: Thank you for the invitation, Jennie. We're very excited. Natalia: Thank you for having us.

Jennie: Of course. Okay, before we get started, I'd like to have my guests introduce themselves and include their pronouns. So let's go. Ivonne, do you wanna go first?

Ivonne: Thank you Jennie, for the invitation. My name is Ivonne Garza. I am a Mexican trained lawyer. I currently work as a Senior Associate at the O’Neill Institute on National and Global Health Law at the Georgetown University Law Center where we work on issues of health and human rights.

Natalia: And I'm Natalia Acevedo Guerrero, I'm a Columbian lawyer. I'm also a bioethicist and I'm a Senior Consultant at the Health and Human Rights Initiative. Also, thank you for the invitation.

Jennie: I'm so excited to talk to you about the court cases from Columbia and Mexico, but I thought, like before we got there, maybe we should like, do a little, just like background or like putting it in the landscape of, of talking about the green wave, just so people, before we get to the cases, maybe can get a big picture idea before we get focused on two local ones.

Natalia: So I can start with that. I think it's important, uh, for people to know that the region of Latin America has been really, uh, moving forward, the recognition of abortion as a right. And this is not something, uh, unique from Mexico and Columbia. And maybe the image that most of the people have seen in the media is the green wave image of like massive social mobilizations in Argentina when they were trying to approve the law in 2019, 2020. That's like the iconic image that most people saw in the New York Times and other newspapers. So I think that context of increasing social mobilization, it's crucial to understand, um, decisions such as the Colombian one and the Mexican ones because, uh, we believe that social mobilization changed the game and changed how, uh, who were involved. Uh, we started to see more young people being involved, uh, other sectors of society being involved in these conversations. Uh, it was just not something like super legal, but it was like a social conversation going on in many of our countries. Um, so in the region we have different countries with different legal orders. Uh, some of them have recognized the right to abortion, and currently abortion is legal, others with really restrictive orders, and that's the region that we have to work on. So, um, that context is important. And we, we also, it the green wave, it's also a symbol for like people moving to push the Congress to approve a law because that's what happened in Argentina. The social mobilization led from years, like many years ago. It was not something from 2019, it was something that started like a long time ago from the feminist movement and, uh, women and different people pushing for reforms. But what we saw in Argentina was, um, the approval of the law, uh, which is, uh, the law from 2020 that recognizes abortion until week 12 and then respects voluntary interruption of pregnancy, um, in certain circumstances. But what has happened in other, uh, countries of the region, it's quite different because it hasn't been like a congress or, um, legislative change, but a judicial change. Um, so that's like kind of like a difference to what happened to Argentina, but it's connected cause it was a movement that push organizations to present lawsuits that push organizations to present interventions before these judicial actors. So, um, like I think these reforms have not been possible, uh, if that like social mobilization hadn't happened. Um, so yeah, the green wave and the social mobilization that started in the region, of course created the, um, the perfect scenario for these judicial decisions to happen. Yeah,

Jennie: Just felt like this real energy, like even here in the us just like, you know, we had seen so many restrictive laws passing at the state level, and so seeing these, like this big win happen in Argentina and then start to spread, just, you just felt the energy from it.

Ivonne: It was real nice, especially in a moment where, um, it sort of, it was a boom. I remember we were like, eh, in the middle of, of the pandemic and these big things happening in Argentina, it was just like a domino effect for the things we saw happen afterwards. And yeah, it the middle of a very also important context where the world was sort of shut down these big news and big wins for the movement came in and it was very, very nice to see.

Jennie: Okay, so maybe let's jump to the first country we're gonna talk about and talk about Mexico. And I know there were a couple different court rulings, so maybe let's start with first the one that took on the legalization of abortion.

Ivonne: Well, thank you, um, Jennie, something that is important before addressing the two decisions from September, which are of course the main discussions for this podcast and super important, I just that some, a brief overview of his history in terms of the jurisprudence that led us to these two resolutions. Because even if we recognize that these two decisions were, were, landmark decisions for, for abortion, they had, um, a few background decisions that allowed for these two decisions to, to happen as they did in 2021. So first of all, um, something to take into account is that Mexico is a federation, as you know. Um, that is a, a big difference with other countries in Latin America that are not, not federal. So with the US, that is something that we can relate with, but it, it is especially relevant for this issue because criminal law regulates abortion. And if criminal law is a state issue, not a federal one, as it's in Mexico, then the issue of abortion starts with analyzing criminal law and how states interact with that. Right? And that's how the jurisprudence was developed. The first cases that came into the Mexican Supreme Court, um, started from, from an analysis of statutory law and whether or not states had, um, the competency and the authority to regulate on such issues like abortion. So, in 1994, Mexico, adopted a constitutional reform that in, in constitutional court. So that is also something to highlight. It's somehow recent that we have a constitutional court within the Mexican Supreme Court. And, um, mostly since 1994 to 2010, the decisions that the Mexican court functioning on constitutional mandate were basically based on issues of competency between executive power of government. Federal, state authority [ruled on] a case from the state of Baja, California in which a 13 year old girl had been raped. And at the time, criminal code, the legislation California demand or requested that attorney, um, an approval to, in order to start an abortion procedure. The district attorney, uh, granted that approval, but the attorney general in the state then prevented, uh, the abortion from happening by certain actions. First, they took [the patient] and her mom to a priest, the priest talked to them about, um, what would happen and advised her not to have the abortion. They disregarded this and went to the hospital, but then in the hospital, the director of the hospital misinformed her of the consequences of getting an abortion. She decided to proceed with the abortion. But then, um, a person came in, into the, into the room and convinced her about not getting the abortion. And then she did not get the abortion and gave birth at 13 years of age. In that case, um, the, the court, um, established first president in favor of course, of, of having, of granting the abortion. The, the whole country was outraged by this case, and that led the city to be inspired, and had law established and changed the defense on a statutory to avoid criminal convictions on abortion. And one of the defenses that was added was the, in addition, was regulated; ironically, the Federal Attorney General and the Federal Human Rights Commission challenged this legislation. And then this challenge came into the Supreme Court who upheld the law on a statutory. What the Supreme Court argued was that, um, that the state of Mexico City had authority to regulate on abortion, different law city, again, decriminalized abortion in 2007, um, that was the first big president that changed the legal framework. And in that, um, um, what the Supreme Court wanted to do is to protect the Mexico City legislation, what they had just enacted. Um, it, it basically established a, a time where abortion was completely decriminalized.

Ivonne: And what it did, again, under this logic of, um, of state competency versus the federal, uh, competency was arguing that again, Mexico City had the authority to regulate, uh, its abortion, uh, regulation. And, that the decriminalization of abortion in Mexico City was constitutional. So it again, protected that. And then what happened after this in was that there came another big constitutional amendment and reformed the human rights amendment which changed, changed a bit. The, the argument, it was no longer a legal framework that would just analyze or mainly focus on federal versus state authority, but rather open up a scenario for civil liberties arguments, um, and concrete cases through, through they could now argue things directly from treaties, um, and other sort of legal instruments and how they related to the Mexican constitution and the legal framework directly in, uh, national remedy. So, um, this is a widely used remedy in Mexico. However, uh, it, it has the restriction that only benefits the person who is bringing the, so usually its effects are not generalized. And this is why there are other mechanisms, abstract mechanisms of constitutionality, like the ones that led up to the decision that can have general effects for the whole population. So at the time, uh, new justices also came into the court because in Mexico, justices are appointed for 15 years. So the court got renewed. It, it was a fresh vision of the court. The court had, um, new justices that, that clearly saw the law in different ways and were receptive to the, and human rights standards being applicable to interpret our own norms and constitutions and so in the Constitution. And so the first cases came, uh, those two first cases were about, um, cases of rape and, and refusal to provide abortion services for victims of rape. The cases went to the court, and, and in those two cases, the court of that women had a constitutional right to live without violence. And that neglecting abortion services was a form of violence, um, because these women had been victims of rape. And that was an affirmative duty by public hospitals to perform and provide free and safe access to abortion. That was the first very important president. And the first, let's say like solid block that led into the decision. The next one was about health of the woman. She, um, was at risk of her health with the pregnancy, and she repeatedly requested the abortion. Um, she was denied the abortion in, in public hospitals and finally got it in a private one. And in this case, the Mexican Supreme Court determined that health law translated not only into a standard of physical health, but into wellbeing, physical, mental, and social health. It upheld the standard of health that is, is, um, enshrined in international legal standards and said that abortion is the beginning of a healing process and not the end. And so that, as such in this understanding of abortion, uh, framed into a right to health, um, there was in, in the eyes of the court a constitutional right to self-determination and decision of one’s sexual and reproductive rights.

Ivonne: And so, uh, this right to self-determination is the second most important block that leads to the 2021 decision that we're now gonna talk about. Uh, but before that came, lastly, uh, another case, a very important case, a case of a person that could not speak, had spontaneous convulsions, and her parents, uh, at gestation realized she was pregnant; convulsions were derived from pregnancy, and that she had been raped. And so the criminal code regulated abortion in cases of rape until the 12th week of gestation. Um, and in this case, the Supreme Court declared that it was unconstitutional to have a limit on 12 weeks for cases of rape because, um, the person should have been, um, should have been granted the right to abortion, um, the pregnancy as, as, as means to protect her health and wellbeing as well. Um, these, these decisions that I have just briefly addressed lead up to, to the two cases. It was actually a set of, um, of three cases that the court analyzed, but the first address abortion the to life and how it's enshrined in local constitutions. But what the court said that second case was just that the, the federal regulation of the right to life is a way that states should regulate it and not beyond it. So it, it's compatible with these two other decisions that we're gonna discuss. The first one is very, very significant. Justice Ortiz, uh, mentioned in one event organized by Harvard University, Justice Ortiz is a justice that drafted the decision, and he said this ruling is very important for the first, um, the discussion about, uh, is not about statutory discussion about justification of defenses in criminal conviction, but rather it's about whether women can have constitutional rights. And that is a whole other dynamic. He said, we went from statutory decisions to constitutional decisions. From justification of defense to assert reproductive self-determination. This such, such landmark analyzed for the first time, uh, whether the use of criminal law to punish abortion was constitutional or not. Uh, and although the Mexican Supreme Court concentrated its analysis based on the impact of the right to decide set, concluded that by declaring, uh, the article in the criminal code that regulated abortion and sanctioned it for persons seeking abortions, uh, what it did, the criminal code was sustaining that absolute criminalization of abortion is unconstitutional. So the court said, uh, if you are sanctioning, uh, then, uh, there is an absolute criminalization of abortion and that is unconstitutional. And this president is now mandatory for all, uh, judges in Mexico because, uh, it was, this case was an accident constitution that is an abstract mechanism to reach the court with general effects. And the court decided on this resolution by a unanimous decision, which means that is compulsory. So to, to emphasize in this, first of all, uh, the right to decide on and the right to self-determination, um, and the, the integration of persons with, um, gestational capacity. Um, and then the other is temporality. So, um, one thing that it is very important to, to, uh, to clarify is that, um, the court said that the right to decide, um, is a combination of different rights and principles, human dignity, autonomy, the uh, freedom of development, of personality, um, legal equality, uh, the, and the right to health, psychological, physical and reproductive health, and also of reproductive liberty. So all of these elements and rights and principles, uh, derive in the existence in constitutional law of a right to decide. And what it said is that free development of personality and autonomy and self-determination means that a person has a right to decide in freedom and autonomously their project to life, their life project, and the way in which they will achieve goals and objectives that are for person and right to health. Um, also, um, include, um, these conditions like the access to, um, to abortion and to freely decide the course of one's own life and reproductive life. And if one has a freedom to choose, uh, its own reproductive pathway, then the right to decide is a necessary condition to exercise the right to health. Um, so what gives the right to health? What is of the right to health court established seven elements. The first is sexual education as a pillar for public policy in health and reproductive health topics. So there should be sexual education everywhere in the country, access to information and counseling for family planification methods of, um, contraceptives, um, access to contraceptives, the recognition of women and persons with gestational capacity as to their own right to pregnancy. Also, the guarantee that a woman or a person with a capacity to take an informed decision with regards to interrupt continuation of pregnancy, same, the same sector of protection, who which are clearly equal and, and equally relevant, uh, and is the election of the person, uh, on whether, on whether they want to continue the pregnancy or not.

Ivonne: Also, the guarantee of women and persons with capacity to just state, uh, to interrupt their pregnancy in public health institutions with, uh, with form that are accessible, free, confidential, secure, expedited and non-discriminatory. So this establishes an obligation to the health, public, public health system to ensure that, um, abortion services can be provided in all these affirmation, waste accessible for free, a confidential, secure, uh, conditions in expedited. It cannot be just like left for many days to decide and in non-discriminatory waste. And finally, that the right of women and any person with capacity to, to decide can only understand the right of abortion. Uh, so, uh, period of time that is, that is close to the of, just to the initiation of gestation. So in that, that is something that we have mentioned times that the court was not, the court was not clear what does it mean period of time close to the initiation of pregnancy, of, of gestation, um, because it sort of left that to the legislative to decide if the court said, I'm not gonna decide where, where this period or how it's understood, this is to legislators to decide. And the court left it open so that it's something that is a challenge, uh, beyond this decision. But something that is very important is that, um, it not only as we can see, uh, the court really was very clear in saying that, uh, reproductive autonomy includes this election, this right to decide and the free access to any form, uh, of contraception and to, to assist reproductive method and eventually also to abortion. Um, so it's clear that the decision is on abortion, but it also enshrines this content of the right to decide that can, uh, that not only affects abortion, but in general any right to decide on one's reproductive decisions. And that includes the fact that we can access assisted reproductive methods, contraception, family planning. Um, and so this is the, something that I also want to clarify is that the court specifically addressed the sanctioning of abortion. So it, um, it said that when the law sanctions, uh, any person that tries to access abortion, it establishes by, by, uh, by regulating a sanction, it establish a ban to access or to, yeah, it obstacles the right to decide. And this is the, this is very important because then, uh, what it does is, is protect this right in, in a way, in a very way, um, basically decriminalizing. So this decision is this decision basically is applicable to any, any place in the country. Um, because it's a, a judicial mandatory rule for judges. However, it didn't immediately, uh, exclude it from the legal framework, all of the criminal codes in the 32 states that comprise Mexico. So now what happens is that those criminal codes also need to change to be coherent and harmonized with this standard. So it, it already generated this effect for the state of Mexico has other states that have further decriminalized based on these decisions, and we can go over them in later. But, um, but there is still a lot pending to do. Cause this is like 32 states. Um, and there's a big way to, to go and move forward to generate changes of legislation that expand criminal, right? So that is first decision, decision is about consensus objection. Basically what was challenged is the regulation of objection in, um, the general health law of Mexico article of the general health law. And so, uh, this general health law established in the past that there was a right to object, right? And that, um, that it, it sort of left, left it in a very abstract regulation. Um, and it, it didn't like comprise limits. It was more, uh, yeah, there is a right to object. And in article established, any medical personnel could invoke except to that was when was to the patient or medical emergency, right? And so this was challenged by the National Commission of Human Rights, um, and it came up to the an abstract challenge constitution. And so basically what the court said is that, um, first it emphasized on the secular rule that we have for the Mexican state, there is a separation between the state churches and freedom of religion, conscious and ethical and ideological convictions.

Ivonne: So the court of that liberty, and it said that this liberty, of course didn't, didn't meant that person didn't have a right to object this, it said that freedom of, um, of religion, um, conscious and convict ethical, uh, and ideological convictions also has limits when the exercise, uh, of that freedom can, uh, generate an abusive exercise of that right, and can impede the exercise of the rights of other persons. So it said that, um, within this freedom there, the consensus objection, um, was not a right that was absolute or limited, but rather that it had limits, uh, and that those limits were, uh, set up by the concurrence of legal, um, legal protections for special, um, special, uh, protections in the law, right? For things that must be protected. And so one of the, those legal protection scenes, the law is a right to health. And that the right to health limits this, uh, is one of those limits to the freedom of conscious religion, ethical convictions, and ideological convictions. And it said that within, within the protected right to health, we also, it it also comprised, um, sexual and reproductive health. And so it said that there were four elements. The court stated that there were four elements, uh, necessary for the integral, uh, attention of sexual and reproductive health. And one was that there should be a medical personnel who is trained and, and has all the resources to, and are qualified, uh, to perform any, uh, sexual reproductive health services, and that there should be availability of these medical personnel and that the services must be accessible to all persons and groups without discrimination or obstacles. And so that this obligation to protect the right to sexual and reproductive health, um, meant that consensus objection needed to be duly, um, duly regulated in the law. And so what the court did is set, set a set of guidelines for the correct, uh, regulation of consensus objection, uh, in a way that it won't, uh, create violations of the right to health or other rights for other persons. And that will bring a balance so that medical personnel can, um, exercise the right to, to objection if they desire under standards that are also protecting in a way that the right to health and especially the right to sexual and reproductive health. So why are those guidelines is, is very brief. The court said, um, that the law needs to clarify, which is the medical personnel or nurses, nurses that will be, um, eligible to exercise the right to objection in institutions, public health institutions, considering that this right must be limited to personnel that participate directly in certain medical procedures. It also, the law should, uh, incorporate a brief time in which, uh, this, uh, objection can be, uh, exercised. So the personnel needs to have a time, but that time should be brief to let them know if they're gonna exercise a consensual objection. It also says that the law should regulate that the person and authority that should decide on whether the objection is approved or not should do it in a brief time as well. Um, and if they don't, uh, say anything in that brief time, then it would be understood that it's not approved. Uh, the, the law should also, um, say that it'll be prohibited for medical personnel or any medical staff to object in cases where the life of the patient is at risk or where there is a medical emergency, or when the exercise of the objection can mean an unnecessary and disproportionate charge for patients, excessive damage for patients. It also said that the regulation can, um, uh, include, um, certain hypothesis to object, um, and that, um, it should also, uh, indicate certain obligations like the duty to, to provide, uh, to provide services in cases of risk, as we already mentioned, but also what the consequences of the, those objections could be in cases where they are, uh, done outside the law and what the law regulates. So, um, it's very clear, uh, it's very important that, um, it, it also states something really important that first medical personnel cannot invoke any sort of religion, eh, ideological, ethical or conscious, eh, consideration when objecting. They cannot translate or try to doctrine or teach anything to. And that is very important, um, because it protects the right object, but also the right of any person to access health services. And it's a guide that is being disseminated. It's the court second decision will ensure access to health services as well as a protection of freedom of conscious religion, objection, et cetera, that right, like it set of guidelines for other countries that are also seeking to regulate in a way other rights. Sorry I went to long.

Jennie: No, it's ok. Um, let's move to Natalia and talk about Columbia.

Natalia: So I think it's, it's very valuable to have, uh, talk about Mexico first because, uh, the decisions are connected and are similar in different ways. So in Columbia, we don't have a federal country, so the decisions from the constitutional court should be applied to all the territory. And, um, it was in 2006 when the court, the constitution, Columbia, for the first time, uh, referred to abortion in a favorable way. So before then, uh, there were other lawsuits that went into the court, uh, but they were not lucky enough to favor a decision. In 2000, under leadership, they presented a new lawsuit and the constitutional court for the first-time decriminalized abortion, uh, under three circumstances, which I think are really similar to other countries when the health or life of the woman is at risk, when the pregnancy is a result of rape or incest and, um, when life is incompatible. So from what happened, a lot of things happened, uh, but basically this, the court started to study cases of barriers, um, cases where providers and insurance companies were doing things that they shouldn't. And the court started to refer to the things that, uh, were prohibited under these decisions. So for example, um, this is the story of many adolescents and women that were trying to access abortion, but they were denied because, um, providers like made up a requirement that was not established in, in the decision. Um, this is also from the years where the court started to refer to conscious objection and the limits of conscious objections, um, to the things that they, they couldn't ask, for example, victims of rape and the things that were necessary and the things that were not necessary. So this is a story of different individual cases that started to get to the court, and the court started to create like the standards of how this should be implement. So now, it was clear that it was not enough, that that decision was not enough because there were many barriers because, uh, we were still trying to, uh, it was especially very challenging to argue, uh, when the woman's, um, physical and mental health was at risk. So it was this like very narrow and limited comprehension of what health was, and it was mostly, uh, about physical health, but the cases of mental health were difficult to prove, or insurance companies were reluctant to accept those cases as included in their decriminalization. Uh, so it was clear for the movement and for the feminist movement that it was not enough and that, uh, the court should study and lawsuit. So this is when the first question that you asked us about the social movement and the green wave, it makes a lot of sense because of, in the, in these years, previous to 2022, the social movement in Colombia, uh, started to work on a new lawsuit. And under the umbrella of the Green Wave movement, which I'm sure you have heard about, and I know that Catalina Martinez from the Center for Reproductive Rights was in a previous episode of this podcast. So I also invite, uh, people to, to listen to that episode. But this movement is a national movement, uh, with organizations from different regions, and they work on a new lawsuit, uh, that went into the constitutional court and under this abstract, um, constitutional lawsuit. And, um, well, the court took some time, but finally, um, decided this new lawsuit in 2022. And this is the, um, and I'm gonna talk about the arguments that the court used in this ruling. Um, so of course this is a huge victory because, um, it's, it's a new, a new way of understanding abortion in the country. Uh, but just to say that abortion was already decriminalized, so it's not like just like starting new, but uh, starting with a different framework.

Natalia: So the court basically study or created, constructed two, four main arguments that I'm gonna briefly talk about. Um, so the first argument has to do with the obligation to respect the right to health and reproductive rights of women pregnant persons or person with capacity. And this was not new. The court had already talked about this in previous like cases and in other in its lost in this case law, uh, from over the years, uh, sexual reproductive rights was not new to the court. This is a really progressive court that's also really an important context. This is the same court that decriminalized, uh, euthanasia in 1997. Same, same sex marriage, too. So this was, this is has always been a really progressive court. So the topic OFC was not to the court. And what the court in this argument is to kind, like, update, um, talk about the different and the newish, uh, international human rights standards that were not included in the 2006 decision. Uh, and the court establishes that of course, abortion is a reproductive right of woman, uh, and it should be protected also in the framework of the right to health. So that's kinda like the heart of the argument. The second argument that we think it's, it's more, uh, it's really like, uh, interesting and, and important for to different, uh, regions and also to the US. The court analyzes how the right to equality of women, uh, was being violated because of the criminalization, the partial criminalization of abortion. But it, the court is not, uh, does not limit it, it the argument to women in general, but talk about the ones that were in context. So this is the part where the court uses a lot of important and interesting data and differentiated data. So I think this is also the part where, like in the previous years, the, the social movement and organizations work a lot on like getting to this differentiated data and getting to this, uh, important, um, research that, uh, led to this important argument by the court. So the first, like the first data that I'm gonna refer is who go to prison. So that's a really important question. Who goes to prison, uh, under the crime of abortion Columbia? Um, and the, the, the answer is really shocking because what the surveys and the research chose and that the court analyzed that almost 50% of women that, uh, went to prison or were charged and for the crime of abortion were under 20 years of 28 years of age. So they were young women, uh, 30% were minors, so people under 18 years old, and most of the women that were charged, uh, for crime were women in domestic services, students, sex workers, and mostly women in rural areas. So what the court says here is like who's, uh, who's being punished for this crime and, uh, why the most vulnerable women are being, uh, impacted by the crime of, so that's when argument of equality and that were in context, it's super relevant. Um, so basically the criminalization of abortion with consent does not show relevant incidents in the reduction of abortion. But, uh, what, what it shows is the criminalization of the most vulnerable woman in the country. Another important question that the court, uh, answer in this argument is, who dies cause of the crime of abortion or because of the criminalization of abortion that makes abortion limited, especially in rural, rural areas or areas with access to healthcare. Um, so the, the answer is women and girls, um, that face public health problems. And, um, these expose, expose them to complications and unsafe practices, uh, that eventually like, um, affect their health and even their lives. And, uh, here they, you study the data of maternal mortality in the country, and that shows that specifically the situation of descendant women in the country and in the Pacific areas have the highest maternal mortality rates. So that's of course, super relevant because again, there's an argument of inequality, um, that it's connected with, uh, with income, with race, with, uh, being in a, in a rural area with being, uh, unemployed. And I'm just gonna read really fast this quote from the court, which I think it's really, really important to close this argument. It is rural women, those who have the lowest socioeconomical strata, migrant woman refugees, those outta school and others, followed by that has already been listed in this ruling, the ones that would have fewer resources and alternatives to terminate and pregnancy without the fact coming to the knowledge of the criminal authorities.

Natalia: Here again, the court analyzes that the ones that are, the ones that are being criminalized and the ones that are being affected, uh, in the right to health and life are the most vulnerable women. So that, um, decriminalization of abortion especially affects the right to equality. That's kinda like the second argument. Um, the third argument is also, uh, connected to especially the, the decision that Ivonne was talking about conscious objection in Mexico. And here does the court studies, not for the first time, but studies the argument of freedom of conscious, um, and in a, in a way historically the court has referred to the freedom of freedom of conscious and conscious objection, especially, uh, connected to abortion, but also with, uh, other topics in the country. But here the analysis is quite different. Uh, the court says that freedom of conscious refers also to the power of each person to be discerned between what turns out to be moral, good or bad in a given situation. Um, and the decision to have kids or not is an intimate matter closely linked to the system of personal values, ethical and religious convictions. Um, and that that is why the decision to have or not to have an abortion, it's closely connected to the freedom of, of each person. Uh, and this freedom, one of the main expressions of human nature, it's also connected with, um, freedom of expression, also dignity, because it, it's, it's your in the most intimate, uh, sphere of your life. So both those who decide doing so or not having an abortion or not, are not only exercising their sexual and reproductive freedom, but are putting into practice their own value of beliefs and values. So this, the criminalization of abortion could end up affecting the most intimate beliefs of, of people. So that's why it also, it can be a violation of freedom argument. And the final, um, it, it's closely connected with the use of criminal law, which is something that we are seeing, we, we saw in Mexico and we're hoping to see from other courts in the region. It's how courts and judicial systems have to start, uh, questioning the use of criminal law to specifically address this topic that is a public health topic. Um, so in this, in this part, the court analyze that how the criminalization of abortion uhs or violates the preventive purpose of criminal law and the concept of resort, the last resort. Um, and here, uh, they, they do, they, they say a lot of things in, in this part, but I think it's, it's, it's worth to mention some of them. Um, the first one, the court studies how the legislative or the, the Congress of Columbia, um, has had an on a mission to regulate in a positive comprehensive matter, the social problem of consensual abortion.

Natalia: So here the court says like, we decriminalize abortion in 2016, and it's 2022, and the Congress has not regulated in any form of the abortion or consensual abortion. And the only available legislation on the topic, it's a criminal code. So that's an mission from the Democratic exercise. Um, and, and you, you'll see that there were, there were a lot of attempts in Congress to regulate the topic after that two six decision. But, uh, we have a congress that represents the Columbian society. So of course there's a really like conservative wing in the Congress, and a hundred percent of those efforts were, um, were not sat satisfactory, and we still don't have a law that regulates abortion. We still, we only have the constitutional court decisions and some more administrative like resolutions from the Minister of Health or things like that. But there, there was no law until the moment. So the court analyzed that. The court also says that, um, this systematic commission has been tragically evidenced by the constitutional court own case law. And here the court refers to those cases, to all those cases that I was telling you about at the beginning. So I think it's more than 15 cases, almost like 17 cases that the court analyzed through the last 15 years. So they basically said that, um, there were 15 years of omissions in the public and private spheres. And the, the argument there is like this ruling that we have not enough, then we're seeing, we're seeing violations, cases of reproductive coercion were not, not enough. Um, the court also said that, um, the, it, it was important to have as, as in Mexico, uh, other like measures that were not only connected to abortion, but to reproductive rights in general. Here they talk about contraception, uh, access to information, access to education, and that's also something to keep in mind. Then we're last before measure, and the court also refers to comparative law, which is really interesting. So there, they, they say that in, in the last years, there's a tendency in the legislative, uh, sphere, but also in the prudence, uh, to reduce the use of criminal law and move towards legal systems that protect and guarantee the rights of women. And those legal systems or those legal, um, strategies are not criminal law. And so they talk about different examples, including the Mexican decision, but also they talk about the Australian case, the case of the state of New York, and how Germany, Spain, Argentina, because this happened after the Argentina law. Uh, but they talk about other ways involving administrative and health policies that could be more effective to regulate abortion that did not include the use of criminal law. Just to conclude the court, like use of arguments and end saying that in order to protect reproductive rights women and the right of, of women persons with capacity to the state, it was necessary to exert other branches of power to adopt a comprehensive policy addressing reproductive rights, but also voluntary abortion. And they, um, decriminalizing abortion, making abortion legal until week 24, as it’s an integral part of the right to health. And after week 24, uh, what, what, what happens is that the same circumstances that we have from six are still applying. So we have, um, abortion, le legal abortion under any circumstance until week 24. And then all those like special or exceptional circumstances would apply. So that's, that's what happens in, in Columbia, of course, we celebrated the decision and we think it's a really important decision for the region and it's standard that the region should follow.

Natalia: Uh, after this on September of last year, um, the minister of health, um issued an administrative like resolution that provides more like a specific instructions of how the service should be provided and all those like specific, like more, um, connected with abortion without conditions, without obstacles. Uh, so I think it's, we have gone a long way from 2006. We learn a lot. And those cases and all that litigation strategies and the research that the organizations did, uh, on those years were crucial to end up having this decision. And I think this shows us that the countries in a different, in a different time, uh, that the, the country was ready for these decisions because we, uh, have gone a long way recognizing how abortion should be implemented. And those like learnings from the past are, are being super relevant for the current implementation of this decision. Of course, we're still seeing barriers. This is not like a decision happens and then everything is gonna change. So that's why the work of organizations and that individual litigation and the, that the work that the organizations do with each case, each woman that face an obstacle, it super relevant, but I think as standard it's a really crucial and important standard for the Columbian society and also for the regional perspective.

Jennie: I love that you wrapped with like lessons learned and like thinking through the lessons because it leads us right into like the next thing that we should touch on is like, what lessons can that you've learned can help you as advocates in this moment? I think, you know, there's things are kinda bleak right now. So like what lessons can us advocates take?

Ivonne: Yeah. Well this is very important, Jenny. As you mentioned, um, the decisions are great, new standards that bring up opportunities to advocate and bring, uh, new legal strategies of course. But, um, it's also an opportunity, uh, to, to reflect upon, um, the elements that bring to these decisions and how US advocates can bring, uh, these elements into the current US context, right? So it's very important, for example, uh, to look at that history of Mexican decisions and decisions and how, uh, the current decisions were built up by other presidents. And something that I think is very important is the issue of discrimination, like in both decisions in the Colombian decision, of course, is very a main, but discrimination become so important. Court decides that in, in both cases, the courts make an analysis on equality. In the Mexican case, the analysis on equality means that by restricting or sanctioning, um, the law is not granting equal access to a service that will guarantee a right, which is a right to decide. And also, uh, and in that way the the legal framework would, unite women. And with capacity to that is like the reasoning behind the court as well, the, the decision on or the analysis on, on equality and non-discrimination makes it possible to assert a, a balance of rights in, in the case of the third decision, right? Like how do make, uh, medical personnel and any person can both, uh, see their rights guaranteed through a balancing perspective. I think, uh, looking at elements that go beyond the law, let's say like the elements that surround the practice and material effects of legal frameworks are also a big lesson from these resolutions. Like how does the, the court analysis if a restriction in practice generates an obstacle sufficient enough to generate, uh, dissuasion effect, right? A dissuasive effect where the person no longer wants to seek a, a service because, uh, they might be sanctioned. And that's what the court also analyzes is not, okay, I'm deciding on, on an interpretation of the law, I'm deciding on a practice of the law. And I think that is very important for advocates now looking at effects of laws, developments, reforms, and information that can then be a sufficient demonstration to courts on the effects that the interpretation of the law has. And I think that's a new, a new way to, to bring up arguments. It's not bringing only the, the ideological side to arguments at theoretical side of arguments, and of course the development of, of norms and standards that are taking place at the international, regional and national level, but rather filling up those interpretations with the practical data that can allow us to shed light into what the context is and not what the context apparently is, but rather the reality of things. And how can that reality bring up change, right? And I think that is, that is something that it's a big lesson for, for the US right now and in general for the region. Because let's also say that it's not only the US looking for new ways, but also other, other countries in the Americas, uh, who are looking into decisions to shed light into things that could be done, uh, differently. And I think gathering data and analyzing things through discrimination emphasis and through, um, and through sort of a constitutional approach that brings into the contextual approach is very important. I dunno if you have any other reflections…

Natalia: Um, yeah, I think I'll add, and I think Ivonne already said this, but, um, legal change most of the times. Um, it's not enough. So we have to protect legal change like the ones that we have seen in the region, but also work in, in the implementation like sphere. And that's gonna take different actors and society, physicians, uh, different legal movements to work, um, and, and work to those, to, to make that implementation a real thing. Um, I think also what these decisions have shown the approach as a crucial part of legal and social change. So, um, like as, as, as I show in the Columbia, for example, the, the, the context and the situation of Venezuela, migrants and refugees that were getting into that, that were arriving to the country, especially in those years from 2017 to 2020, uh, that was a crucial part of the argument because the court analyzed how, um, the criminalization of abortion was especially harming them. So I think that going back to Ivonne's point was, um, getting this data, getting this information, but with an intersectional approach, um, to analyze who's being hurt the most with this, um, ban, with this criminalization of abortion and with this laws that criminalize reproductive rights. And the other thing that I would say is that, um, we are seeing that after this big wins and after a big, big decision such as the one that we saw in Mexico and in Colombia, but also after the law in Argentina, of course there's gonna be pushback and that pushback, it's gonna look in different ways, it's gonna look to the board traditional ways of, um, using legal strategies to go after the law in Argentina or to challenge the decisions in, in Columbia, Mexico. And that's part of, uh, what we were expecting and of, and also it's part of democracy that different groups can use legal strategies and legal tools to, to challenge things, but there are other manifestations of that pushback and that can come, for example, in, in a way of criminalization. And that's something that we need to keep in mind because having these decisions does not prevent countries or authorities to still criminalize women, uh, and for abortion or for obstetric emergencies. And we are seeing that more and more often in the country even after these wins. So we have to keep in mind on criminalization and working against criminalization. Um, and this not, this not only affects women or persons with capacity to just stay, but also physicians. We think more physicians being criminalized and also, um, companions and organizations that, um, that stay with women in, in, in self-managed abortions, for example. Um, so it's something that we need to learn also from this. Like we, it's not just like we, we, we got the big win, the judicial big win, and we gonna like stay seated and watch, no, we, we need to keep working. Uh, because this is never, like, we, there's always gonna be something that we need to protect and there's al always gonna be something that we need to work to implement. So I think it's, it's just like a message of encouragement and of like, uh, the work, it's, it's, it's always gonna be there. So it's better to have strong organizations and strong movement that it's ready to defend any pushback that we can have.

Jennie: Oh, I think that's like the perfect, like wrap up. Cause I think that that's something that's been really important here is like a lot of people thought like, we got Roe and like that was it, we were done. And like, but you need to keep that momentum going and you need to keep engaged in the fight the whole time. Cause the opposing forces are gonna quit fighting against it. So we need to keep the movement strong. Um, okay. So I'd like to wrap up, uh, my interviews by always focusing on is there something the audience can do? So what actions can our audience take that would be helpful?

Ivonne: Well, uh, I think one first thing is to gather information, disseminate information, something that, um, is very important is to learn and discuss and generate spaces for dialogue. Um, this podcast in itself does a great deal on that. Um, we're trying to generate, um, the information, accessibility and availability of the information. And so one thing that I would like to invite everyone is to access our website where we have publications on our work. Also translations on our institute website so that you can find, uh, information on, on these decisions and disseminate. Um, but another thing is just, um, yeah, having short conversations with the people we know, that is, I think like a very important thing. Um, one of, of the issues many, many, many of us face is like not discussing things, uh, that are relevant. And it starts with sharing with our inner circles, friends, family, uh, and start discussing these issues that affect us all. We never know, eh, if we will ever be in a position to require medical services. And it's very important to have, be well and have the correct information to assess those, those before the information we receive. So I, I would first invite everyone who is listening to us, um, today to learn more, um, about, about these decisions, about abortion, about sexual and reproductive health. And our website is one too, but there's many others, and I would invite everyone to do that. Yeah, I think, um, what, what else can I say? I think the invitation is to read the decisions and we, we are trying to do a better job with the translation of these decisions because of course we speak Spanish, we're from Latin countries, uh, but the, the language can be a barrier. So we're trying to do a better job like translating the decisions and also, um, de disseminating them. Uh, but I think I, I'll put the, the emphasis on the arguments because I think, uh, the way the arguments by the courts and also the arguments used in the lawsuits were framed. Uh, it, that's a lot of work behind. So I think that that construction of arguments can be an inspiration, uh, for other movements and organizations that are working in the legal sphere, but also that are working in other spheres. Um, and I think for the region, um, of course including the us uh, but also different countries in, in the region, we are seeing how, uh, having these decisions in Mexico and Colombia has inspired them to push forward and to ask for more. So we, for example, we're seeing arguments, uh, from the Mexican judicial decisions in equatorian lawsuits or in legislative discussions in Bolivia. So of course this is of, this is a wave of, um, energy, as you said, Jennie, uh, that it's gonna, uh, move, uh, in the region and in other parts. So I'll say like curiosity for what's going on in other like context that is not yours, uh, can be a super powerful too.

Jennie: Oh, I like that. Well, Natalia, Ivonne, thank you so much for being here. I had so much fun talking to you today.

Ivonne: No, thank you, Jennie, for the invitation. Thank you. It was a pleasure being here.

Jennie: Okay, y'all, I hope you liked my conversation with Natalia and Ivonne. It was great to have them both on and learning more about, um, abortion liberalization in Columbia and Mexico.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.