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Reforming African Abortion Laws to Achieve Transparency: Arguments from Equality

Document Cited authorities 5 Cited in Related
Vincent
Date01 October 2013
Pages398-426
AuthorCharles G. Ngwena
DOI10.3366/ajicl.2013.0070
Published date01 October 2013
INTRODUCTION

The historical criminalisation of abortion is a major explanation for the persistence of unsafe abortion in the African region. As long as criminalisation remains the main tool for regulating abortion, the question of reforming African abortion laws will not go away. The African region carries a disproportionate burden of unsafe abortion at a time when technologies and procedures for terminating pregnancy have become not only much easier to use and safer, but also more affordable. In the Global South, where doctors are highly scarce and/or their distribution is highly skewed, appropriately trained mid-level providers can, if domestic law permits, be trained to safely perform abortions using methods such as MVA (manual vacuum aspiration).1

D. A. Grimes, J. Benson, S. Singh, M. Romero, B. Ganatra, F. E. Okonofua and I. H. Shah, ‘Unsafe Abortion: the Preventable Pandemic’, 368 Lancet (2006): 1,908–19, at 1,915; J. Yarnall, Y. Swica and B. Winikoff, ‘Non-physician Clinicians Can Safely Provide First Trimester Medical Abortion’, 17 Reproductive Health Matters (2009): 61–9.

In this regard, South Africa has led the way in the African region by recognising the competence of appropriately trained midwives and nurses to perform abortions in the first trimester,2

Choice on Termination of Pregnancy Act 1996 section 2(2) as amended by the Choice on Termination of Pregnancy Act 2004 section 1.

 with a salutary effect on substantially broadening access to safe abortion.3

C. Ngwena, ‘The History and Transformation of Abortion Law in South Africa’, 30 Acta Academica (1998): 32–68, at 47–8, 66; K. Dickson-Tetteh and D. L. Billings, ‘Abortion Care Services Provided by Registered Midwives in South Africa’, 28 International Family Planning Perspectives (2002): 144–50.

 Another important development is the advent of medical abortion. Medicines for procuring abortion obviate the need for invasive surgery, making it even more feasible for developing countries to meet abortion needs, without first incurring large capital outlays in health infrastructure and human resources.4

I. K. Warriner, Unsafe Abortion: An Overview of Priorities and Needs, in I. K. Warriner and I. H. Shah (eds), Preventing Unsafe Abortion and Its Consequences, Guttmacher (2006), pp. 1–14, at pp. 1, 4–5; S. Clarke et al., ‘Misoprostol Use in Obstetrics and Gynecology in Brazil, Jamaica, and the United States’, 76 International Journal of Gynecology and Obstetrics (2002): 65–74.

 Thus, given political willingness, it is not cost that largely stands in the way of the African region meeting abortion needs, but the historical criminalisation of abortion

In essence, this article argues that where abortion is permitted under domestic law, even in a very restricted form, the State has a corresponding duty to ensure that any attendant rights are amenable to effective realisation. This entails, inter alia, a duty to raise awareness about the legality of abortion among women and healthcare providers. Furthermore, it entails taking steps to ensure that women seeking abortion have access to administrative procedures that facilitate timely review of any decisions to refuse abortion so that litigation, which promises, at best, a retrospective vindication of legal rights for women, becomes an option of last rather than first resort for women who do not wish to become mothers in the first place. These state duties can be described as ‘transparency’ duties.5

R. J. Cook, J. Erdman and B. Dickens, ‘Achieving Transparency in Implementing Abortion Laws’, 99 International Journal of Gynecology & Obstetrics (2007): 157–61; C. G. Ngwena, ‘Inscribing Abortion as a Human Right: Significance of the Protocol on the Rights of Women’, 32 Human Rights Quarterly (2010): 783–864, at 806–8.

The rationale for arguing for transparency is that laws that criminalise abortion but without concomitantly articulating clearly the grounds for lawful abortion, as has been the main historical trend in the African region, unduly deter healthcare providers from providing health services to women even where abortion is lawful. Equally, such laws create misperceptions about abortion as conduct that is criminal at all times. The general failure by the legislative and executive arms of government in the African region to translate any given abortion rights into rights that are visible and tangible has served as a veritable barrier to safe abortion services.

Ultimately, this article seeks to develop a normative theoretical framework for transparency using transformative notions of equality. It is argued that transparency is, in part, a way of situating abortion law in procedural equality. Transparency serves the value of achieving equal protection under the law.6

R. J. Cook and S. Howard, ‘Accommodating Women's Differences under the Women's Anti-Discrimination Convention’, 56 Emory Law Journal (2007): 1,039–91, at 1,067–9.

Even where the public shares different views about abortion, as is guaranteed, taking a philosophical cue from the work of John Rawls, it is argued that it is possible to see transparency as an expression of an ‘overlapping consensus’ on the need for effective implementation of legal rights in a liberal democracy that is committed to equal opportunities.7

J. Rawls, Political Liberalism, Columbia University Press (2005), pp. 131–72.

 The overlapping consensus is ultimately underpinned by a conception of political liberalism among people who have different and even incommensurable comprehensive religious, philosophical or moral conceptions of a good life, but can, nonetheless, agree that according citizens equal opportunities to exercise their rights under the law is an important value of justice as fairness. Such consensus is integral to organising the basic structure of society, including its legal institutions.8

Ibid.

This article also argues that transparency is a way of situating abortion law in substantive equality by grounding abortion law in actual lives lived and injuries suffered by women. Substantive equality seeks to ensure that abortion law is woman-centred and adequately responsive to the needs of a social group whose reproductive needs have historically been criminalised and stigmatised by society and health systems. In this sense, the duty of transparency becomes a transformative way of thinking about human rights not just as claims that impose duties of restraint on the State, but also as claims that impose positive obligations aimed at enabling the effective realisation of rights.9

S. Fredman, Human Rights Transformed: Positive Rights and Positive Duties, Oxford University Press (2006), pp. 10–14.

The arguments from substantive equality principally draw from Nancy Fraser's critical theory of recognition,10

N. Fraser, Justice Interruptus, Routledge (1997); N. Fraser, ‘Rethinking Recognition’, 3 New Left Review (2000): 107–20; N. Fraser and A. Honneth, Redistribution or Recognition? A Political–Philosophical Exchange, Verso (2003).

 and the capabilities approach of Amartya Sen11

A. Sen, Development as Freedom, Anchor Books (1999), pp. 74–110; A. Sen, ‘Elements of a Theory of Human Rights’, 32 Philosophy & Public Affairs (2005): 315–56, at 328–38; A. Sen, ‘Gender Inequality and Theories of Justice’, in M. C. Nussbaum and J. Glover (eds), Women, Culture and Development, Oxford University Press (2007), pp. 259–73.

 and Martha Nussbaum.12

M. C. Nussbaum, Women and Human Development: The Capabilities Approach, Cambridge University Press (2000); M. C. Nussbaum, ‘Human Capabilities, Female Human Beings’, in Nussbaum and Glover (eds), Women, Culture and Development, ibid., pp. 62–104.

The article has five sections. Section I, the present section, is the introduction. Section II summarises the historical development of African abortion laws. It draws a link between the criminalisation of abortion and unsafe abortion, and highlights lack of transparency as a contributory factor. Section III posits transparency as an expression of Rawls' idea overlapping consensus and an integral part of any human rights application of abortion rights irrespective of moral views about abortion. Section III also draws from recent global and regional abortion-related jurisprudential developments on transparency. Section IV advances a transformative normative rationale for transparency arguing from the capabilities approach. Section V is the conclusion.

 HISTORICAL DEVELOPMENT OF AFRICAN ABORTION LAWS AND THE LINK WITH UNSAFE ABORTION Persistence of a crime and punishment model

The origins of African abortion laws lie largely in colonial jurisprudence. Abortion laws were transplanted from Europe to Africa interimbricated with masculinist theologies that emanated from deeply entrenched patriarchal power. Criminalisation of abortion in the colonising European countries sought to protect sanctity of foetal life and reflect abortion as religious sin.13

R. J. Cook and B. M. Dickens, ‘Human Rights Dynamics of Abortion Law Reform’, 25 Human Rights Quarterly (2003): 1–59, at 8–9.

The underpinning philosophies were shaped primarily by Catholic theologies, but also Protestant theologies after the Protestant Reformation of the 16th century.14

R. J. Cook and B. M. Dickens, ‘The Injustice of Unsafe Motherhood’, 2 Developing World Bioethics (2002): 64–81, at 73.

 As with Judaeo-Christian theories and praxis of the time, the theologies were not inclusive. They did not concern themselves with accommodating the life and experience of women as persons whose well-being and life plans must be respected because of their intrinsic value.15

E. Vuola, ‘Thinking Otherwise: Dussel, Liberation Theology and Feminism’, in L. M. Alcoff and E. Mendieta (eds), Thinking from the Underside: Enrique Dussel's Philosophy of Liberation, Rowman and Littlefield (2000), pp. 149–80, p. 166; B. W. Harrison, Our Right to Choose: Towards an Ethic of Abortion, Beacon (1983), pp. 6, 16.

 Rather, they were androcentric, drawing impulse...

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