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Undurraga & Cook on the Columbian Constitutional Court's Abortion Decision

By Lawrence Solum

Verónica Undurraga and Rebecca J. Cook (University of Toronto - Faculty of Law) have posted Constitutional Incorporation of International and Comparative Human Rights Law: The Colombian Constitutional Court Decision C-355/2006 (Constituting Equality: Gender Equality and Comparative Constitutional Law, ed. S. H. Williams, pp. 215-247, Cambridge: Cambridge University Press, 2009) on SSRN. Here is the abstract:

This chapter analyzes the 2006 decision of the Constitutional Court of Colombia legalizing abortion where - the continuation of pregnancy presents a risk to the life or physical or mental health of the woman; - there are serious malformations that make the fetus nonviable; or - the pregnancy is the result of a criminal act of rape, incest, unwanted artificial insemination or unwanted implantation of a fertilized ovum.

The Court held that banning abortion violates women's fundamental rights, because such criminalization places a disproportionate burden on women's exercise of human rights protected by the 1991 Colombian Constitution and by international human rights law. The chapter explores how the Court applied the Colombian version of the French doctrine of the "constitutional block" to protect the rights of pregnant women by incorporating international human rights law within its judicial review of the abortion legislation, giving constitutional status to human rights treaties ratified by Colombia. The chapter describes the reasoning of the Court regarding the status of the unborn under Colombian and international law, the way the Court balanced the constitutionally required protection of the unborn with the rights of women, and the borrowings the Court made of comparative law and jurisprudence. It explains how the Court enriched the meaning of the dignity of pregnant women by interpreting constitutional provisions in light of international human right sources with a feminist perspective, and laid a foundation for protecting the reproductive rights of women in countries that are parties to the treaties on which the Court relied. It concludes by exploring the challenge that the current practice of incorporation of international law in domestic jurisdictions poses for feminist legal scholars to develop sounder normative foundations that would secure the recognition of women's rights in domestic and international law.

Full post as published by Legal Theory Blog on March 26, 2010 (boomark / email).