On June 24, 2022, the US Supreme Court reversed the landmark 1973 abortion rights decision Roe v. Wade, ruling that people in the US no longer have a constitutional right to abortion. In its ruling, the court upheld a Mississippi ban on abortion after 15 weeks of pregnancy and eliminated federal constitutional protections for abortion.
The decision opens the door to states severely restricting or banning abortion outright. The case —Dobbs v. Jackson Women’s Health Organisation—was brought on behalf of the last abortion clinic in Mississippi. While the ruling delivered a wrecking ball to the constitutional right to abortion in America, it doesn’t stop the overwhelming global support for legalising abortion.
The global support towards recognition of abortion as an essential health care is at an all-time high world over. Nearly 60 countries across the world have liberalised their abortion laws over the past 30 years, including Ireland, India, New Zealand, and Argentina.
France and Germany repealed laws and policies that restricted access to abortion care and Spain has a pending legislation for improving greater access to abortion rights. In Africa, Kenya, South Africa, Liberia and Benin —and further afield— Colombia, Nepal, and Mexico are classic embodiments of the legal recognition of abortion rights.
In March, a landmark ruling by the High Court in Malindi strongly affirmed that abortion care is a fundamental right under the Constitution and that arbitrary arrests and prosecution of patients and healthcare providers for seeking or offering such services is illegal. The ruling recognised that “access to safe abortion services is a human right” and “forcing someone to carry an unwanted pregnancy to term, or forcing them to seek out an unsafe abortion, is a violation of their human rights, including the rights to privacy and bodily autonomy.”
The decision stemmed from the arrest of an adolescent and a health care provider following the administration of post-abortion care. The court further recognised that “blanket ban on abortion and or prosecution of medical personnel exposes both the mother and foetus to mortality and therefore flies against state obligations in reducing maternal and infant mortality rates and violates the right to life.”
In another ground-breaking decision in June 2019, the High Court in Kenya affirmed that abortion is a fundamental right in the Constitution, reinstated standards and processes for reducing morbidity and mortality from unsafe abortion in Kenya, lifted the ban on training of health workers on safe abortion, and allowed the use of Medabon for medication abortion. The court also said that the Constitution permits abortion in situations where a pregnancy, in the “opinion of a trained health professional,” endangers the life or the mental, psychological, or physical health of the mother.
In Liberia, lawmakers are preparing a bill to expand access to abortion, which is currently subject to tight restrictions that many women circumvent through clandestine and dangerous means. The existing law allows abortion only in cases of rape, incest, fetal abnormality, danger to the mother's life or risk to her physical or mental health.
In Benin, a groundbreaking new abortion law was passed in 2021 that legalises abortion up to 12 weeks gestation in cases where the pregnancy “is likely to worsen or cause a situation of material, education, professional or moral distress which is incompatible with the woman’s interests.” Prior to the new law, abortion was only permitted to save the pregnant woman’s life or in cases of rape or incest and it was only tenuously applied.
In Colombia, a constitutional court in February 2022 recognised that abortion must be permitted on request up to 24 weeks gestation and thereafter on specific grounds, including when the person’s life or health is at risk, when the fetus is not viable, and in cases of rape or incest. Previously abortion was only permitted in Colombia on specific grounds.
In Mexico, the Supreme Court in September 2021 issued a ruling unanimously recognising a constitutional right to legal, safe, and free abortion services at the initial stages of pregnancy, as well as in other situations outlined by the Court.
In Nepal, the Supreme Court in 2009 recognised the government’s obligation to guarantee access to safe and affordable abortion services, emphasizing the inextricable link between the right to abortion, the right to equality, and the right to freedom from discrimination and that denying legal abortion results in forced pregnancy and childbirth.
While overturning Roe may embolden opposition groups to push against the gains made on abortion rights, it cannot stop the overwhelming global progress and support for legalising abortion as an essential form of health care. The decision doesn’t in any way affect funding for abortion work across the world. Reproductive rights actors must now unite more to block any form of regression on abortion.
Mr Onyango is Associate Director, Legal Strategies for Africa, Center for Reproductive Rights