A leaked draft of a Supreme Court of the United States (SCOTUS) opinion that would overturn Roe v Wade, a landmark 1973 decision that gave women the constitutional right to abortion, recently put the right to abortion once again on the global agenda.
As a human rights lawyer in Kenya, I too am watching developments in Washington, DC with concern. This is not only because I feel that American women are forced to fight for their right to bodily autonomy, but also because case law in Commonwealth jurisdictions, such as Kenya, is sometimes influenced by the decisions made. in US courts.
Consider the recent decision in Constitutional Petition E009 of 2020, which strongly affirmed that abortion care is a fundamental right under the Kenyan Constitution and prohibited the arbitrary arrest and prosecution of patients and health care providers for seeking or offering such services. In its determination, the court cited and relied on principles set forth in previous SCOTUS decisions, including Roe v Wade; Griswold vs. Connecticut; Eisenstadt v. Baird; and Rochin v California, among others. Therefore, a move by SCOTUS to overturn Roe v Wade would further jeopardize abortion rights in my own country as well.
In Kenya, the Constitution in Article 26 (4) allows abortion under certain conditions. That is, if, in the opinion of a trained health professional, there is a need for emergency treatment; or the life or health of the mother is in danger; or if permitted by any other written law. However, 11 years after passing the Constitution, Kenya’s male-dominated legislature has yet to pass any legislation on reproductive health. Additionally, the executive continues to threaten access to safe abortion for women and girls by taking a narrow and restrictive public policy approach to the issue.
Consider that in 2015, the Ministry of Health arbitrarily withdrew the “Standards and Guidelines to Reduce the Morbidity and Mortality of Unsafe Abortion in Kenya”, creating uncertainty about the status of legal abortion and dissuading medical providers from performing abortions for fear of the legal consequences. . The courts later ruled that the ministry’s actions were unconstitutional.
We know that laws that seek to limit the number of abortions in a given jurisdiction rarely do so. Instead, they lead to an increase in unsafe abortions that can cause serious health complications and even death.
According to the World Health Organization, around 73 million induced abortions are performed worldwide each year. Global estimates from 2010 to 2014 show that 45% of all induced abortions are unsafe and that developing countries bear the burden of 97% of all unsafe abortions.
In Africa, where the risk of dying of unsafe abortion is the highest in the world, Roe v Wade has long been a major weapon in the arsenal of those fighting to liberalize abortion laws and make the procedure safer for women and girls despite the fact that it is rarely invoked by name. Tunisia, which previously only allowed access to safe abortion for population control purposes, liberalized the law just nine months after the Roe v Wade ruling, allowing women to access the service on demand. In addition, in 1986, Cape Verde allowed abortion on request before 12 weeks of gestation, which aligns with the celebration of the same in Roe v Wade.
After a protracted struggle, some 30 years after Roe v Wade, in 2003, the African Union finally adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, known as the Protocol of Maputo. The protocol explicitly requires countries to authorize medical abortion in cases of sexual assault, rape, incest, or when the continuation of the pregnancy endangers the health of the mother. This specific provision is based on the 1979 United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which in turn snagged its provision on access to safe abortion in Roe v Wade. Today, of the 55 member countries of the AU, 49 have signed the protocol and 43 have ratified it.
The fact that women’s right to abortion was recognized at the federal level in the US encouraged other countries to move toward liberalizing their abortion laws. Significant progress has been made to secure abortion rights for African women since Roe v Wade came into effect nearly half a century ago, yet the fight is still far from over.
Twelve African nations have not yet ratified the Maputo Protocol, and many of those that did have yet to bring their national laws into line with its requirements. Opponents of abortion led by the Catholic Church and its affiliates still command significant political and social support in many countries, including Kenya, and work day and night to further limit women’s access to the procedure. One example is the Catholic Church-backed group CitizenGO, which promotes anti-abortion campaigns, including a failed effort to investigate and shut down Marie Stopes International, whose services save lives.
Some may argue that concerns about the potential overturning of Roe v Wade having an effect on women’s access to health care in Africa are unfounded, as all African countries are independent: they can all enact laws and formulate policies. free from the West. This is true, but only up to a point.
In many African nations, key women’s rights initiatives are sustained only by funding from the West. In Kenya, for example, 95 percent of aid for sexual and reproductive health comes from the United States. Therefore, African governments are often inspired by political decisions made in Washington due to the latter’s financial strength.
Furthermore, anti-abortion forces in the US have always been willing to limit access to abortion not only domestically but also internationally. The United States has passed laws and initiatives in the past designed solely to limit access to abortion abroad.
Take for example the Mexico City Policy, commonly known as the Global Gag Law, passed by President Ronald Reagan in 1984. The policy requires foreign NGOs to certify that they will not “actively perform or promote abortion as a method of family planning.” ” using funds from any source, including non-US funds, as a condition of receiving US comprehensive family planning assistance.
The various US presidents who have come after Reagan have reinstated or withdrawn the rule. But the policy remained in place for many years and played a significant role in restricting women’s access to safe abortion in developing countries.
In 2017, President Donald Trump not only reinstated the policy, but also significantly expanded its scope. Four years later, in 2021, President Joe Biden rescinded it once again.
Although a Supreme Court decision on Roe v Wade would not result in the policy being reinstated by the current US administration, the repercussions would be terribly dire with a change of administration to the Republicans. This is because foreign policy is often driven by domestic politics. Therefore, retracting Roe v Wade would be just the beginning of the assault on women’s rights in the US and abroad. It is possible that an unfavorable ruling from the highest court on American soil could be used to permanently codify the gag rule.
This policy has always been aimed at controlling the behavior of NGOs, but each time it was reinstated it also affected the behavior of governments, as it signaled to them that the US is no longer committed to protecting the right to abortion.
Economic resources have long been used as a weapon to perpetuate neo-colonialism in Africa. In many African countries, patriarchal leaderships welcome foreign funds that come on the condition that women’s rights, including their right to abortion, be sidelined, especially when these funds are desperately needed to mitigate serious economic crises.
Indeed, during President Trump’s tenure, access to safe abortions became more difficult for many women in many countries of the Global South, in part because of Washington’s stance on the issue.
In Kenya, for example, the High Court reinstated the Standards and Guidelines to Reduce Morbidity and Mortality from Unsafe Abortion in 2019, but the Ministry of Health did not provide instructions to health professionals on their implementation. This was widely interpreted as the government’s hesitation to depart from the current US position on abortion. Consequently, government facilities in the counties still do not have Medabon, a recommended combination therapy for safe abortion. Health professionals also remain untrained in providing safe abortion and post-abortion care; and those with the skill set are hesitant to offer these services for fear of arrest by the government, whose executive arm often operates above the law, disregarding court orders. All that means is that many women in the country still have little choice but to resort to unsafe clandestine abortions that can lead to sepsis, shock, organ failure and death.
Biden’s decision to withdraw the Mexico Policy and his administration’s overall pro-choice stance on abortion rights gave hope to many fighting for safe abortion access in countries like Kenya, but the overturning of Roe v Wade and the consequent introduction of abortion bans in several US states may make any progress unlikely once again. American abortion policies, whether we like it or not, have a significant influence on how seriously governments take the issue of unsafe abortions. Therefore, an overturning of Roe v Wade would not only affect the safety and well-being of American women, but also women around the world and especially in developing countries.
The views expressed in this article are those of the author and do not necessarily reflect the editorial position of Al Jazeera.