March 21, 2022
‘We were stubborn, and we actually made it’ – a lawyer behind Colombia’s abortion victory explains how they did it
By Megan Clement (follow me on Twitter here)
Less than 20 years ago, Colombia had a total ban on abortion; today it has one of the most liberal laws in the world. On February 21, a historic ruling in the constitutional court made abortion available on demand up to 24 weeks of pregnancy. The decision was just the latest in a wave of reproductive rights victories across Latin America that takes in Chile, Argentina, Mexico and Ecuador.
Mariana Ardila was a law student when Colombia took its initial steps towards decriminalisation. This was in 2006, when the court first ruled that abortion could be made available under certain conditions.
She says this victory sparked an interest in feminism, which saw her take up a clerkship for one of the court’s judges upon graduation. After five years of drafting position papers on reproductive rights, Ardila took what she had learned in the court and applied it on the other side of the bench. She joined Women’s Link, one of the organisations behind the Causa Justa (Just Cause) movement which successfully argued for the near-total decriminalisation of abortion last month, winning in court by a majority of five to four.
In a conversation with Impact, Ardila explained the history, tactics and movement-building behind the campaign that succesfully secured Latin America’s most progressive abortion laws for the people of Colombia.
This interview has been edited for length and clarity.
Megan Clement Could you start by explaining who you are and what role you played in this major development in the history of Colombia?
Mariana Ardila I’m a managing attorney at Women’s Link. Women’s Link is a transnational feminist women’s rights organisation – we use the power of the law to achieve social change for women and girls through litigation. Women’s Link has been involved in the fight for legal and safe abortion in Colombia since the beginning. In 2006, when Colombia had a total ban, we took a case to Colombia’s constitutional court to decriminalise abortion. We got decriminalisation on three broad grounds: rape, inviability of the foetus and risk to women’s life and health, understood broadly as social, mental or physical health. Since then, we have been engaging in litigation in front of the court to defend real access to those three grounds.
Around four years ago, another organisation, La Mesa por la Vida y la Salud de la Mujeres invited organisations, activists and professors to join the Causa Justa movement because they felt we had enough evidence that the three grounds were not reaching the most vulnerable women, and that, instead of going down criminalisation was going up, especially in areas where much of the Afro-Colombian population lives, which are affected by conflict, racism and poverty. So that was one of the grounds for our case.
Another was that using criminal law to regulate abortion impacted the liberty of conscience of women, because in a decision that is as important as whether to give birth or not, the state was using the strongest measure – criminal law – to interfere in a decision that is very much related to your own conscience and your own life plans. Also, criminal law was not being used as the last resort, but as the first and even only measure.
Finally, there was an argument that Women’s Link was very insistent on, and that we drafted in the lawsuit, about the impact of criminalisation on migrant women. For some years now, Colombia has been experiencing increasing migration, especially from Venezuela. Among those migrants, more than half are women who, among other reasons, migrate to access reproductive health services, including legal abortion, which they can’t find in their country, where there is a 90% shortage of contraceptives. The court accepted this ground and it is the very first decision that explicitly recognises that migrant women face particular obstacles and are entitled to this right.
Megan Clement Can you paint a picture of what it was like for people trying to seek abortions between 2006 and 2022 in Colombia? What were the kinds of situations that people were facing when they needed to terminate an unwanted pregnancy?
Mariana Ardila If you were a woman with some privilege, with access to information, living in a big city, you would have access to a service on the three grounds and you could do it safely with no fear of being reported to the police.
But if you were living in a rural area affected by conflict, or if you were an adolescent, or a woman with no education or information, obstacles kept piling up and delaying timely access to services. All these obstacles meant that some women still resorted to unsafe abortion, even if they were covered by the three grounds. In some cases, even if you were covered by the grounds and went to ask for the service, or if you had an unsafe abortion and had an emergency and went to the emergency room in a hospital, you would end up being reported to the police.
More than 50% of the criminal reports in Colombia were made by people working in hospitals and clinics, breaching doctor patient confidentiality. This was saying to women, the most vulnerable ones: “Don’t come here, we will report you to the police.”
On January 8, this year, a woman with two children died from having an unsafe abortion in the north of the country.
We represent a very young, migrant Venezuelan woman who already had three children. She was entitled to get a legal and safe abortion within the healthcare system, because she had a certificate that said that her health was at risk with the pregnancy. But all the obstacles she faced: the fact that she was in the border regions, the fact of xenophobia, the fact that she was Venezuelan, the fact that she was uneducated and didn’t have the money to travel to another part of the country, made her undergo forced motherhood.
That is just one example of what happened here – and we hope it ends.
Megan Clement And now you have one of the most liberal abortion laws in the world, in that it’s available on demand until 24 weeks.
Mariana Ardila Yes, this is an historic ruling in Latin America and the Caribbean. Colombia is now the country with the most progressive law on abortion and the court ruling that is the most protective of women.
We hope women will now get faster access to the healthcare system. Only 2% of the abortions right now in Colombia are done after the 20th week of pregnancy, but that 2% of women are the most vulnerable: the unemployed, victims of violence, girls and adolescents. So by taking down obstacles, we hope that they get to services earlier, and that they can access information about contraception within the healthcare system. We also hope they will be pointed to state agencies that give services to victims of violence and other services to women.
The court not only decriminalised abortion up until the 24th week, and then made it available under the three grounds after that, but also made a call to the government and to congress to have a comprehensive sexual and reproductive rights policy that protects both pre-natal life and pregnant women, who wish to end their pregnancy or who wish to give birth. So to dismantle barriers for access, but also to give support to women and newborns. The hope is that now we can turn to those measures instead of using criminal law.
Megan Clement At Impact, we cover all different types of feminist movements, from grassroots organising to big legal victories like this. Could speak a little bit about the power of using litigation and going through the courts to make changes to improve women’s lives?
Mariana Ardila The way we see litigation is not that we take these cases just to win for the women we legally represent or for us, even though as lawyers we like to win! It’s about how, whether you win or not, cases help to shape the public debate, how they help to bring more allies on board, help to raise awareness about the problems women are facing, and how they strengthen the women’s rights and human rights movements.
The Causa Justa movement is not the lawsuit – it is more broad than that. It is currently made up of more than 90 organisations and more than 100 diverse individuals in more than 20 places around the country. The movement seeks to shape the public debate to raise awareness and to actually ensure access and provision of services to women. The movement chose a lawsuit to be their first big bet. It could have been other things, maybe an appeal before the Congress, but it was litigation. And that gave us the opportunity to offer our experience.
We filed the case in September 2020. We had been working for more than six months to draft the lawsuit, but with that, we took advantage of the case to hold conferences, rallies and street mobilisations, to talk in the media about this issue. Many people became aware of the access barriers and of the fact that women were being criminalised in Colombia. People didn’t know this, and didn’t know that the numbers were rising and not going down. They got to know the stories of women who were impacted. And so more and more people joined the movement in the streets and on social media.
What I say is, we got this major victory and that’s great, but even if we hadn’t won, we now have more of a movement that is much more coordinated and strong. We have more allies.
Megan Clement What are the tools that your movement has used to change people’s minds about abortion, and to make it more accepted in society?
Mariana Ardila We had very consistent messaging based on evidence and stories. The public discourse about abortion in many places, and for quite some time in Colombia, had been: are you in favour or against? We shifted the conversation to ask: is criminal law the best way to handle this? We showed with figures and with stories how ineffective this was, how damaging it was, especially for vulnerable women, and that there were many other ways to actually reduce abortions, as well as having them done earlier and safely, and so people started to understand.
We repeated the message consistently in different formats: in newspapers, on TikTok, on Instagram, on Twitter, in podcasts, in street art, and through songs – we even had a reggaeton song talking about this – we got people to dance about it and do challenges and go into the streets. It’s about using different channels for different audiences.
Megan Clement Can you speak about the remarkable change that’s happening in Latin America, a region in which until recently abortion was very restricted?
Mariana Ardila In Latin America, there is a trend, with a few exceptions, towards decriminalising abortion and giving women access to healthcare services. We have wins both through the courts and through congress: in Argentina through congress, in Mexico through the courts and through local parliaments, in Ecuador related to abortion in cases of rape, and now in Colombia with the most progressive decision.
This is what we call la marea verde [the green wave]. We inspire each other. We are in close communication and connection, we support each other and we learn from each other, from the mistakes and from the victories. It makes us feel hopeful that we can take these wins to other parts of the continent that are in a very worrisome state like the Dominican Republic, Venezuela, Honduras, Nicaragua and El Salvador.
We hope that more decision-makers and citizens understand that all those myths about what happens when you deciminalise abortion are false. We have the evidence to show that it actually benefits women and families and that not every woman is going to have an abortion or use it ‘irresponsibly’.
We hope to get more wins and to consolidate this strength in the region.
Megan Clement What are your tips for other organisers and activists who are working to liberalise access to abortion in their country? What have you learned?
Mariana Ardila Don’t lose hope – hope when you can. Take the time to organise, to really think through your arguments and gather your evidence. Rely on the stories that we all know, about women who are suffering. Be creative, and dare to dream about it. When we started this, when we were about to file the lawsuit, some people said, ‘You’re crazy. This is not possible. You’re going to waste your time.’ But we were stubborn, and we actually made it, so trust in yourself and your fellow activists and organisers, and at some point, it will happen. We will prevail.
This issue of Impact was prepared by Megan Clement and Steph Williamson.
Impact is financed by the New Venture Fund.
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