Opportunities and Decisions: A Comparative Analysis of the Legal Treatment of Abortion

Abstract

This work approaches the judicialization of the dispute over sexual and reproductive rights from the perspective of the social sciences. The article will focus its analysis on the characteristics of the process of judicialization of abortion in Mexico (from 2000 to 2002 and 2007 – 2008) and in Colombia (2005 – 2006) as they represent paradigmatic cases involving these rights. When the question of abortion enters the legal sphere, whether the issue is legalizing or criminalizing it with all of the implications in terms of criminalization, public health policy in general and sexual and reproductive health in particular, there can be no doubt that the quarrel extends beyond what is legal or illegal and is tied to the way adequate social order, ownership of one’s body, the relationship between public and private, faith and reason, state secularity, and above all sexuality, reproduction, and death are all conceived (Klein, 2005). Nonetheless, it must be recognized that when the debate over abortion passes from moral arguments or discussions of how to design and implement public policies into the legal domain at the behest of parties who either support or fight against it, a fundamental delegation of the power to resolve this dispute into the judicial branch takes place. This branch will decide in favor or against a determined legislative measure on the basis of determined reasons.