Unsafe abortion remains one of the most neglected global public health challenges. A 2020 Guttmacher Institute report shows Sub-Saharan Africa has the highest abortion-related death rates, at 185 maternal deaths per 100,000 abortions. Many more live with lifelong disabilities due to unsafe abortion. The deaths and disabilities are preventable.
Abortion stigma is often perpetuated by the state through discriminatory laws and policies and judicial stereotyping when judges reach a view based on preconceived beliefs, rather than facts and actual enquiry.
Last Friday, the US Supreme Court overturned Roe v Wade, a 50-year-old precedent recognising the right to abortion, thereby erasing the constitutional protection of abortion in America in a classic case of judicial stereotyping. In this case of Dobbs v Jackson Women’s Health Organization, the dissenting justices observed: “The court reverses course today for one reason and one reason only: because the composition of the court has changed.” Planned Parenthood of Southeastern Pennsylvania v Casey was a decision of the US Supreme court that reaffirmed Roe.
Is the raging debate in the US about religious beliefs, rule of law or simply just who has the power to do what? Take, for example, the global gag rule—a policy that prohibits foreign NGOs who receive US global health assistance from providing legal abortion services or referrals while also barring advocacy for abortion law reform—even if done with the NGO’s own, non-US funds.
President Ronald Reagan first enacted the policy in 1984. It has been reintroduced by every Republican president and rescinded by every Democratic administration. After Reagan, the policy was rescinded by Democratic President Bill Clinton, re-instituted by Republican President George W. Bush, rescinded again by Democratic President Barack Obama, reinstated by Republican President Donald Trump and rescinded by Democratic President Joe Biden in January 2021.
We must not allow this American ping-pong to cloud our judgment of what our reality is and what is good for us. Over the past 25 years, nearly 60 countries have liberalised their abortion laws. The Maputo Protocol was adopted in 2003 by the African Union to uphold equal rights for girls and women and it is the only human rights instrument that explicitly recognises abortion as a human right, allowing abortion in cases of sexual assault, rape, incest, life-threatening foetal anomalies and when a pregnancy endangers the woman’s mental and physical health or her life.
We have made tremendous progress: 22 African countries expanded their legal grounds for abortion in 2000-2021. By 2017, six out of 53 countries—Cape Verde, South Africa, Tunisia, Mozambique, São Tomé and Príncipe—permitted abortion at the woman’s request during the first trimester of pregnancy and Angola up to 10 weeks of gestation. Seven countries—Chad, DR Congo, Eswatini, Mauritius, Mozambique, Rwanda and Sao Tome and Principe—have moved to comply with the Maputo Protocol.
Several African countries explicitly protect abortion in their laws. In Ethiopia, it is allowed when the pregnancy results from rape or incest; the pregnancy endangers the health or life of the woman or the foetus; foetal abnormalities; women with physical or mental disabilities; minors who are physically or psychologically unprepared to raise a child a grave and imminent danger that can be averted only through abortion. Rwanda’s penal code allows it in cases of rape, incest or forced marriage and if the health of the pregnant woman or foetus is in danger.
Right to life
In Kenya, abortion is constitutionally protected under the right to life, allowing termination of pregnancies when the life or health of the woman is in danger, during emergencies and under the right to the health, including reproductive healthcare.
In a case against an adolescent and a healthcare provider over post-abortion care, the High Court in March ruled that “access to safe abortion services is a human right” and “...blanket ban on abortion and/or prosecution of medical personnel exposes both the mother and foetus to mortality”.
We must not allow the recent US decision to ramp up abortion stigma and create an unnecessary chilling effect on abortion service provision. We must all educate ourselves about what our laws say on abortion.
The American people’s confidence in the Supreme Court is now at its lowest level, according to a Gallup poll released last week. It must not be looked up to or emulated.
Ms Opondo is the senior regional director for Africa, Centre for Reproductive Rights. [email protected].