Case T-627/12

The plaintiffs, 1200 women filing a joint tutela, seek constitutional protection against false information being spread by the Attorney General of Colombia regarding emergency contraception.

The Attorney General stated that emergency contraceptive that contained Levonorgestrel was an abortificant as the contraceptive can prevent implantation of a fertilized egg on to the walls of the uterus. Under Colombian law, the right to life is engaged at the time of conception and thus this form of emergency contraception is illegal.

The factual statements were in direct contradiction to WHO fact sheet No. 244 of October 2005, which says that emergency contraception that contains Levonorgestrel prevents ovulation and has no affect on uterine lining.

The Attorney General issued circulars stating that conscientious objection to the provision of contraception has no legal restrictions, in disagreement with previous constitutional decisions.

The plaintiffs allege that the Attorney General is in violation of their rights to information, reproductive rights and their rights to education, health and the benefits of scientific progress as established by the Constitution and international human rights treaties like the American Convention on Human Rights.

The Court held that The Court holds that the Attorney General violated his obligation to provide accurate information and that there was a constitutional obligation on senior civil servants to provide (i) accuracy and impartiality when transmitting information, (ii) a minimum factual justification and reasonableness of their opinions and in any case, (iii) the respect of fundamental rights, especially those subject to special constitutional protection. Moreover, the judgment of responsibility for overstepping these barriers is itself due to its preeminent strict condition compared to the population, but even more so when the mass media use. The Court notes the evidence the plaintiffs present of false, inaccurate or incomplete information amounts to breaking the principle of balanced information. They also note that public officials are held to a higher standard regarding the right to information.

The Court also found that reproductive rights are constitutionally protected. Reproductive rights are solidly based on the obligations to ensure appropriate services for pregnant women listed in article 43 of the Constitution, article 12 of CEDAW and General Comment 14 of the ICESCR.

The Court combines the two points to state that there is a right to information on reproductive health.

“En virtud de este derecho los receptores pueden exigir, además, cierta “calidad” en la información recibida. Concretamente, están habilitados para exigir que sea veraz e imparcial como explícitamente lo prescribe el artículo 20 de la Carta de 1991 y, adicionalmente, que quien difunda información la diferencie “claramente de las opiniones”.” (p. 125)

Under this law the receptors may also require some "quality" of the information received. Specifically, they are authorized to demand to be truthful and impartial as explicitly required by Article 20 of the 1991, and additionally, who disseminate information that differentiates "clearly of opinion."

“Los Estados están obligados a “abstenerse de censurar, administrativa o judicialmente información en materia reproductiva que vaya acorde con la legislación vigente sobre la materia. Ello exige de los Estados que las políticas públicas y programas respecto de salud sexual y reproductiva se basen en evidencia científica que proporcione certeza.” (p. 161)

States are required to "refrain from censoring, administrative or judicial information on reproductive health to be consistent with existing legislation on the subject. This requires States that public policies and programs regarding sexual and reproductive health are based on scientific evidence that provides certainty.