Court Case Reports, Journal Articles, News Articles
Legal Grounds : Reproductive and Sexual Rights in Sub-Saharan African Courts I, II, III
There have already been two publications in this series, the first compiled by the Center for Reproductive Rights (CRR) in conjunction with the University of Toronto (Canada) Faculty of Law, International Reproductive and Sexual Health Law Program, the second compiled by CRR with the University of Toronto Program and also the LLM Programme on Reproductive and Sexual Rights of the University of the Free State, South Africa. A third edition is in the process of being published online, details below.
All three can be foundhere. All three contain reports and discussion of legal cases on a wide range of sexual and reproductive health and rights topics heard in courts across sub-Saharan Africa.
Thefirst edition, compiled and edited primarily by Kibrom Isaac, was published in February 2005. The only cases specifically on abortion were attempts to challenge the constitutionality of the current abortion law in South Africa. In both cases, the constitutionality of the law was upheld.
The cases in the second edition, published in 2010, were identified and primarily drafted by Kibrom Isaac-Teklehaimanot and included an additional 48 cases up to 2008. Again, there were only three cases related to abortion, summarised in a chapter entitled "Abortion and Fetal Interests". They include a wrongful life claim when a child was born with serious disabilities that were not identified during pregnancy, which was dismissed; a case in which the court was asked to define abortion as murder, which the court rejected. This case summary is accompanied by a long and valuable discussion of the implications of the ruling for dealing with any future attempts to define and treat abortion as murder. A third case is also listed in which several health professionals in Kenya were acquitted of murdering two fetuses found near their clinic, both because the deaths were not ruled as murders and because there was no evidence linking the accused to the deaths at all.
The table of contents of thethird edition contains links to information about some but not yet all of the cases. The chief editor is Godfrey Kangaude, Executive Director of the Nyale Institute for Sexual and Reproductive Health Governance in Malawi. The cases related to abortion include one from Kenya, in which a nurse who tried to treat a woman who came to him with complications of unsafe abortion was accused of murdering her and sentenced to death in 2009. An appeal against the sentence was lodged in 2014 and is still waiting to be heard. A detailed and valuable discussion of the significance of the Tali case can be found here. Details of a 2005 case from Niger about the distinction between abortion and infanticide have not yet been placed online. One case is from Rwanda, in which a girl who had been raped was permitted a legal abortion. And a case from Zimbabwe in which the State was held liable for hindering a woman's access to emergency contraception but not for hindering her access to abortion...
Third prosecution for self-use of medical abortion pills withdrawn after a caution + comment
On 11 January 2017, the Belfast Telegraph, Northern Ireland, reported that a woman and her partner were on trial for allegedly using medical abortion pills to self-induce an abortion. On the first day, she asked to remain anonymous while the case was heard, because she was at risk of suicide if her name became known.
On 19 January, the Belfast Telegraph reported that the risk to the young woman's mental health and life was confirmed by an expert, and anonymity was granted by the judge. A prosecution lawyer disclosed that the test for continuing with the case had been re-assessed following the expert medical evidence and that "In light of all information now available a decision has been taken that the public interest can be met by diversionary disposal." The couple accepted formal cautions, and prosecutors then withdrew the charges against them after warnings were administered to them last week.
We draw attention to this case for two reasons. First, it informs us that being treated like a criminal and put on trial for self-inducing an abortion can cause depression, anxiety, self-harm and even a risk of suicide in a young girl or woman, especially those who may be vulnerable for other reasons. This represents the State putting the mental health of women at grave risk. Secondly, the term used by the Belfast Telegraph in the article for medical abortion pills was "poison". According to the Northern Ireland Alliance for Choice, this is not the first time that this news site has used this term, and letters from them in protest have not got them to amend this usage. The use of the term "poison" follows from its use in the 1861 law under which this young woman and her partner are being prosecuted.
We decided to write to them from the Campaign, and to share our letter here, so that others are motivated to respond similarly if and when they read other articles that also deliberately make this "mistake" in order to frighten women away who may some day need the pills themselves:
Dear Belfast Telegraph,
[I have learned] …that you consistently describe the medical abortion pills mifepristone + misoprostol as "poison" in your articles about prosecutions of Northern Irish women who have used them to induce an abortion [most recently the 11 Jan article]. I'm curious to know how often and on what other subjects you adopt such an archaic and inaccurate 19th century term to describe something that is happening today in an entirely new and safe way...
"The practical and the philosophical dimensions of conscientious objection are closely related. It is tempting to allow a physician to conscientiously object to abortion as long as there is an efficient referral system in place that guarantees that women can easily obtain the service from another physician; however, this practical solution raises several other questions. Should conscientious objection be granted only to a certain number of physicians? If so, is exclusion of certain physicians from conscience exemptions a form of discrimination? And should physicians be allowed to object to any practice, or only to practices that contravene some religious views? Should the same right be extended to other professions, or is it a prerogative of the medical profession? Answering these questions requires answering more fundamental questions at the philosophical level: is a right to conscientious objection grounded in some fundamental civil right, such as freedom of religion? Can pluralism about values or respect for autonomy justify conscientious objection in cases in which individuals freely choose their professions? Is there something special about medicine that makes it different from other professions when it comes to protecting individual conscience?
"These and other questions will be addressed in the articles in this special section of the Cambridge Quarterly of Healthcare Ethics , which gathers contributions from some of the most important bioethicists and philosophers worldwide. The articles collected here address both the practical and the philosophical dimension of the problem of conscientious objection in healthcare. A wide range of positions will be presented, criticised, and defended from philosophical, ethical, and legal perspectives."...
The International Campaign for Women's Right to Safe Abortion supports the March on Washington and the March on America on 21 January 2017, and all the marches in solidarity around the world.
On 4 January in a special newsletter and in every newsletter since then, we called on our 1,100+ members in 115 countries to organise solidarity action in their countries, near US embassies where possible, in support of everything this march stands for. We also called on them as advocates to ensure that the demand for the right to safe abortion is visible among all the demands of the march, and to support the many other issues that the march is taking up, including opposition to racism and violence, and support for the right to citizenship, social and economic justice, gender justice, sexual and reproductive health and rights, the rights and safety of immigrants, and much more.
Please share our greetings and best wishes on the day in sisterhood with everyone around the world who is marching for peace and justice for all peoples.