A leaked draft of a United States Supreme Court (SCOTUS) opinion that would overturn Roe v Wade, a landmark 1973 decision that gave women the constitutional right to abortion, recently put abortion rights once again on the global agenda.
The overturning of Roe v Wade would not only affect the safety and wellbeing of American women, but women all across the world and especially those in developing countries.
As a human rights lawyer in Kenya, I too am watching the developments in Washington, DC with worry. This is not only because I feel for American women being forced to fight for their right to bodily autonomy, but also because case law in commonwealth jurisdictions such as Kenya is sometimes influenced by decisions taken in US courtrooms.
Consider the recent decision in Constitutional Petition E009 of 2020, which strongly affirmed that abortion care is a fundamental right under the Constitution of Kenya and outlawed arbitrary arrests and prosecution of patients and healthcare providers for seeking or offering such services. In its determination, the court cited and relied upon the principles set out in previous SCOTUS decisions including Roe v Wade; Griswold v Connecticut; Eisenstadt v Baird; and Rochin v California among others. Thus a move by the SCOTUS to overturn Roe v Wade would also put the right to abortion in further jeopardy in my own country.
In Kenya, the Constitution in Article 26 (4) allows for 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. Nonetheless, 11 years after passing the Constitution, Kenya's male-dominated legislature is yet to pass any law on reproductive health. Moreover, the executive continues to threaten access to safe abortion for women and girls by adopting a narrow and restrictive approach to public policy on the issue.
Consider that in 2015, the Ministry of Health arbitrarily withdrew the "Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya", creating uncertainty as to the status of legal abortion and discouraging medical providers from performing abortions for fear of the legal consequences. The courts later ruled the ministry's actions as unconstitutional.
We know that laws seeking to limit the number of abortions in any given jurisdiction rarely do. Instead, they lead to an increase in unsafe abortions that can cause serious health complications and even death.
According to the World Health Organization, about 73 million induced abortions take place worldwide each year. Global estimates from 2010 to 2014 demonstrate that 45 percent of all induced abortions are unsafe and that developing countries bear the burden of 97 percent of all unsafe abortions.
In Africa, where the risk of dying from an unsafe abortion is the highest in the world, Roe v Wade has long been an important weapon in the arsenal of those fighting to liberalise abortion laws and make the procedure safer for women and girls despite it rarely being invoked by name. Tunisia, which previously allowed only access to safe abortion for population control purposes, liberalised the law just nine months after the Roe v Wade ruling--allowing women to access the service on demand. Additionally, in 1986, Cape Verde allowed for abortion on request prior to 12 weeks gestation which aligns with Roe v Wade holding of the same.
After a drawn-out fight--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 Maputo Protocol. The protocol explicitly requires countries to authorise medical abortions in cases of sexual assault, rape, incest, or where the continued pregnancy endangers the health of the mother. This specific provision draws from the 1979 United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which in turn hooked its clause on access to safe abortion on Roe v Wade. Today, of the 55 member countries in the AU, 49 have signed the protocol and 43 have ratified it.
That women's right to abortion was recognised at the federal level in the US encouraged other countries to move towards liberalisation of their abortion laws. Significant progress has been made towards securing abortion rights for African women since Roe v Wade came into effect nearly half a century ago, however, the struggle is still far from over.
Twelve African nations have still not ratified the Maputo Protocol, and many of those who did are yet to bring their national laws truly in line with its requirements. The opponents of abortion led by the Catholic Church and its affiliates still have significant political and social support in many countries, including Kenya, and they are working around the clock to further limit women's access to the procedure. An example is the Catholic Church-backed group CitizenGO which promotes campaigns against abortions including an unsuccessful effort to investigate and shut down Marie Stopes International, whose services are lifesaving.
Some may argue that the worries about the possible overturning of Roe v Wade having an effect on women's access to healthcare in Africa are baseless as African countries are all independent--that they all can and do enact laws and formulate policies free of the West. This is true, but only to a certain extent.
In many African nations, key women's rights initiatives are being sustained only thanks to funding received from the West. In Kenya, for example, 95 percent of sexual and reproductive health aid comes from the US. Therefore, African governments often take cues from policy decisions made in Washington due to the latter's financial muscle.
Moreover, anti-abortion rights forces in the US have always been keen to limit access to abortion not only in the country but also internationally. The US has passed laws and initiatives in the past designed solely to limit access to abortion abroad.
Take the Mexico City Policy, commonly known as the Global Gag Rule, passed by President Ronald Reagan in 1984. The policy requires foreign NGOs to certify that they will not "perform or actively promote abortion as a method of family planning" using funds from any source, including non-US funds, as a condition of receiving US global family planning assistance.
The various US presidents who have come after Reagan have either reinstated or withdrawn the rule. But the policy remained in effect 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 expanded its reach significantly. 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 reinstatement of the policy by the current US government, the repercussions would be deleteriously dire with a change of administration to the Republicans. This is because foreign policy is often driven by domestic policy. Clawing back on Roe v Wade would therefore only be the beginning of the assault on women's rights in the US--and overseas. It is possible that an unfavourable ruling by the highest court on American soil could be used to permanently codify the gag rule.
This policy has always been aimed at controlling the behaviour of NGOs, but whenever it has been reinstated it also affected the behaviour of governments as it gave them the signal 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 happily accept foreign funds that come on the condition of the relegation of women's rights--including their right to abortion--especially when these funds are desperately needed to mitigate grave economic crises.
Indeed, during President Trump's tenure accessing safe abortions became more difficult for many women in many countries across the Global South partially because of Washington's stance on the issue.
In Kenya, for example, the High Court reinstated the Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in 2019, but the Ministry of Health did not provide direction to health professionals on its implementation. This was widely interpreted as the government's hesitation to depart from the then-current US position on abortion. Consequently, government facilities in the counties still do not stock Medabon--a combination therapy recommended for safe abortion. Health professionals also remain untrained on the provision of safe abortion and post-abortion care; and those with the skill set are hesitant to offer these services for fear of arrests 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 other than turning to unsafe backstreet abortions that can lead to sepsis, shock, organ failure and death.
Biden's decision to withdraw the Mexico Policy and the general pro-abortion rights stance of his administration gave many fighting for safe abortion access in countries like Kenya some hope, but the overturning of Roe v Wade and the consequent introduction of abortion bans in various US states can make any progress unlikely once again. The US policies on abortion, whether we like it or not, significantly influence how seriously governments take the issue of unsafe abortions. Thus the overturning of Roe v Wade would not only affect the safety and wellbeing of American women, but women all across the world and especially those in developing countries.
