Abortion is an emotive moral and legal issue across the world

About a month ago, the media in the United States published a leaked draft opinion – that is, a draft judgment – which had been written by one of the judges of the Supreme Court in the case of Dobbs and Jackson Women’s Health Organisation.

While leakage of a judgment before it is officially confirmed as the final version and formally released is a rare and unethical conduct on the person responsible for the leakage, the main controversy about the leakage was the subject of the supposed judgment and what it would mean if it remained as leaked.

The effect of the decision in the US would overturn the famous Roe vs Wade judgment delivered by the court in 1973. The Roe decision is famous but also contentious because it was made in a case where a pregnant single woman brought a case to challenge the constitutionality of a law in the state of Texas which prohibited abortion except on medical advice for the purpose of saving the woman’s life.

State of the pregnancy

The Supreme Court held in the case of Roe that a law such as that of Texas that made it an offence for a woman to procure an abortion unless her life was in danger without regard to the state of the pregnancy violates the due-process rights under the Constitution and therefore was an abridgement to the right of the woman to privacy in making that decision in private consultation with her physician.

That has been the law on abortion in the US for almost five decades despite efforts by different state legislatures to restrict what prohibitionists perceive to have been a free ticket for abortions on demand. It explains why the leakage of the draft opinion alarmed those who may have thought and acted on the basis that the decision in Roe settled the issue of the right to abortion in the US. Apart from the ethical concerns about the leakage, the outburst to what was still a draft was so heated that the Senate had to pass a Bill that added protection to the judges of the Supreme Court and their families, in response to protests by pro-abortion supporters outside the judges’ homes.

The issue of abortion is emotive the world over. It divides opinions based on faith, conscience, health concerns and personal body autonomy.

Mental well-being

At its base, there is the gravid mother and her physical and mental well-being. Then there is the well-being of the child or foetus, as some would like to say, who has no ability to speak for himself or herself and whose right to live the anti-abortion advocates champion. Then there are the third parties who have public order concerns and who find it immoral that persons should be allowed to obtain and procure abortion at will. The advocates for privacy and bodily autonomy for their part argue that the state has no right to invade personal private choices of the mother as to her decision on whether to carry the baby or not.

In most Latin-American countries, abortion is banned outright. Ecuador, for example, did not have any exceptions permitting abortion for rape victims until early this year. This is attributed to the mainly Christian majority in those countries who view this as an abominable extinction of innocent lives  of defenseless children. In February, Colombia’s constitutional court decriminalised abortion by striking out a law that had proscribed abortion. Prior to this, abortion was permitted only when the mother’s life was deemed to be in danger or when the pregnancy was the result of sexual assault or incest.

The Colombian constitutional court held that this was too restrictive and held that abortion during the first 24 weeks of pregnancy would no longer be illegal. In the decade before this decision, about 350 women had been convicted for abortion, 20 of whom were girls under 18 years.

The drift towards more permissive laws for abortion is not uniform in Latin America. El-Salvador, for instance, is an outlier on this issue. In May this year, a court in El Salvador slapped a woman who had suffered a miscarriage with a 30-year jail term for aggravated homicide. She was arrested after she sought medical care in a public hospital and could not prove that she had not initiated the abortion.

The country has an absolute ban on the procedure and has seen women charged for murder even after seeking abortion while suffering obstetric emergencies unless they can prove that there was indeed an emergency to justify the termination of pregnancy.

In India, there was an amendment to the Medical Termination of Pregnancy Act in 2021, which made it possible for a pregnancy to be terminated within the first 24 weeks if there was a danger to the pregnant woman’s life or mental health. Before this amendment, the maximum period was set at 20 weeks. India’s position is that short of immediate danger to life, a pregnancy may not be terminated beyond the statutory limits unless a court order of exemption is obtained by the woman.

The courts then establish a medical board consisting of doctors of different specialties such as gynaecology, radiology and psychiatry to advise the court on whether the termination should be permitted. This procedure is less contentious to most people because it solves the concern of pro-abortion activists whose main criticism of anti-abortion laws is that they place political and legal bureaucrats at the centre of policing the private medical choices of women.

Life in danger

In Kenya, the Constitution is clear that abortion is outlawed unless a trained medical professional confirms that the pregnant woman’s health is in danger or that there is some other valid reason provided by law.

 The Penal Code also proscribes abortion in a number of offences which indicate that any assistance to a woman who seeks an abortion or providing of equipment to be used in such a process is a felony. How this plays out from the law books was evident in a case where a high school student who conceived a child from an association with a fellow student went to a clinic to seek medical intervention due to a complication with the pregnancy. At the clinic, a medical practitioner assisted her with emergency medical care upon establishing that she had a spontaneous abortion. Sometime later, the student was charged with the offence of procuring an abortion and the medical officer with assisting her to do so.

The two challenged this in the High Court in Malindi, arguing that the criminal charges preferred against them were unconstitutional because they had acted within the constitutional exception for conducting an abortion in an emergency. In March this year, a judge held that the right to abortion is a fundamental right and made a declaration ordering Parliament to enact a law on abortion in Kenya and a public policy framework to take cognisance of the exceptions under which the Constitution permits abortion to be carried out.

This judgment was a shocker for many in Kenya. Contentious as it is, abortion has always been deemed as an exception to the right to life, and not a fundamental constitutional right in itself as the court determined in this case. The case will probably be litigated all the way to the Supreme Court.

Whatever the outcome of the Supreme Court decision in the case where an opinion leak upends the law on abortion in that country or not, abortion will remain an emotive issue the world over in this year and beyond.

Mr Owino is the Head of Legal at Nation Media Group PLC.