Through the Ministry of Justice and the Ministry of Education, the Government established its position on the demand for Just Cause with which this movement seeks to eliminate from the Penal Code the crime of abortion, so that this practice is not prosecuted under any circumstances.
This lawsuit was filed because the Voluntary Interruption of Pregnancy (IVE) was allowed by the Constitutional Court in the country since 2006 under three causes (risk to the life or health of the mother, malformation of the fetus and rape), but in all other situations it is penalized.
Precisely, according to the concept of the Ministry of Justice -supported by the Ministry of Education-, In this new lawsuit, the Constitutional Court should “remain to what is resolved” in its ruling of 2006, that is, to maintain the system of grounds under which this practice cannot be penalized, without eliminating the crime of abortion from the Penal Code.
Their arguments could be summarized in two: first, the Ministry of Justice believes that in this debate the jurisprudence is already established. And secondly, it ensures that criminalization or decriminalization is an issue that must be discussed in Congress and not in the high court.
According to the Ministry, in 2006 the Court already established its position and in that decision said that the Unborn “is a human life in gestation and as such the State has a clear duty of protection.” Thus, in the judgment of the Ministry, if the Court wanted to reassess its jurisprudence on the protection of that life of the unborn (born?), would have to explain why, for example, there has been a transition to protect the life and existence of animals through criminal measures.
“Society deserves to know why it is constitutionally reasonable to punish, even criminally, those who injure the life of animals, but it is not possible to impose sanctioning measures designed to protect the life of the unborn human, who, Despite not being a person in the civil aspect of the term, it would be, from some moment of its development, at least one sentient being belonging to the human species “, assures the Ministry in its concept to the Court.
Society deserves to know why it is reasonable to punish, even criminally, those who injure the life of animals, but it is not possible to impose sanctions to protect unborn life
The Just Cause lawsuit ensures that the Court should rule again on the issue because the fact that the IVE has been recognized since 2006 means that now the demanded article is not the same, since abortion has not been a crime since then in three circumstances, and that brings new implications. Specifically, the applicants state that The main barrier to the right to voluntary interruption of pregnancy is the crime of abortion. They also consider that the national public policy context and the international context have changed since then.
(Read the full arguments of the lawsuit here: Constitutional Court receives new lawsuit against the crime of abortion)
But for the Ministry of Justice, the Court should not rule on the matter again since, in its opinion, 14 years ago it already evaluated the rights that the lawsuit now considers violated with the crime of abortion. Thus, ensure this portfolio, at the time the corporation already made a “weighting between the fundamental rights of women and the constitutionally relevant good of the life of the born?“.
In addition, he assures that despite the fact that the International Human Rights System has urged States to decriminalize abortion, he believes that “It is still reasonable” to maintain what was said in the 2006 ruling, in the sense that it is not possible to totally sacrifice the rights of women for which “in specific circumstances” it can be aborted, nor should it be totally sacrificed “the constitutionally protected good of the life of the unborn”. It also states that although the applicants cite a ruling of the Inter-American Court in favor of decriminalization, This ruling does not oblige the Colombian State to control its internal laws because in his opinion it is a role that corresponds to Congress.
On the other hand, the Ministry of Justice ensures that the plaintiffs they do not explain why the crime of abortion “would be the direct cause of the existence of barriers to access to IVE” or why it prevents it from being carried out in the three permitted grounds.
Nor does it believe that the crime of abortion could affect the right of health professionals to freely exercise their profession -as the applicants claim-, because it considers that the problem lies in the interpretation of the causes and eventually in the application of the crime, but in the Government’s opinion, this does not mean that doctors are prevented from developing their profession or that the crime of abortion is unconstitutional.
The Government also talks about the arguments of Causa Justa about how the covid-19 pandemic has brought new barriers to permitted abortion, and how there are differential barriers for Venezuelan migrant women. According to the Ministry of Justice, These conjuncture situations do not imply that the definition of the crime of abortion goes against the Constitution.
On the other hand, although the lawsuit affirms that the crime of abortion is ineffective – because it does not prevent women from aborting, but on the contrary forces them to do so in unsafe ways – for the Government this situation “does not automatically generate its unconstitutionality” and cites a 2009 high court ruling to that effect.
‘It is the task of Congress’
One of the main arguments of the Ministry of Justice is that this debate should take place in Congress, and not in the Constitutional Court, because he believes that “it is not possible to censor” the legislative decisions by which in 2000 Congress classified the crime of abortion in the Penal Code, “without first giving said entity the opportunity to exercise its powers, in a that the domestic legal order is adapted to the specific and enforceable international mandates “.
It should be remembered that one of the reasons for those who support that the Constitutional Court overthrow the crime of abortion is that the high court has asked the legislature on several occasions to rule on the issue, without the Congress having passed any law in this regard.
In fact, in the concept that the Legal Commission for Women’s Equity sends it to the Court, in which it points out that they do not have a unique position on abortion, it tells them that after reviewing the file of the last five years there is no registry of legislative proposals, debates, formal sessions, public hearings or forums on the voluntary interruption of pregnancy.
(We invite you to read: Court tomb order to investigate a minor for the crime of abortion).
However, for the Ministry of Justice, the Court should refrain from deciding on the merits in this process “As long as the opportunity for the legislator to define, in a reasonable term, is not exhausted, whether or not to modify the provision demanded, based on the recommendations and observations of international organizations that promote the decriminalization of abortion, as well as the inter-American jurisprudence that established the progressive and gradual duty to protect the lives of human beings in training ” .
(Also read: The 33 times Congress has failed to legislate on abortion).
For the Government, the high court should only rule “in the eventual case” in which what the Congress determines violates international norms and the country’s Constitution.
This being the case, although the Ministry believes that the Court could provide a “coherent solution” to the question as to whether “the property so far protected from the life of the individual is totally insignificant. born? “ As if to point out that there can be no penalty for abortion, consider that “Out of respect for the independence of the public powers” that debate must be given before the legislature.
‘Universities are autonomous to include training on voluntary termination of pregnancy’
In the middle of the lawsuit, the Constitutional Court asked the Ministry of Education if within the medical school pensum it is training professionals with knowledge about the voluntary interruption of pregnancy.
However, the Ministry affirmed that since the creation, organization and development of academic programs of public or private universities is the responsibility of these institutions, since they are autonomous, the functions of the Ministry are limited to inspection and surveillance.
(Read: The 162 questions of the Court, when admitting lawsuit against the crime of abortion).
Thus, he assures, each university that offers the Medicine program is the one that decides “the way in which the issue of the Voluntary Interruption of Pregnancy is developed”, which means that there are no Ministry guidelines on this matter.