Demonstrators gather outside the US Supreme Court as the court rules in the Dobbs v Women's Health Organisation abortion case, overturning the landmark Roe versus Wade abortion decision in Washington DC, US on June 24, 2022.
The United States presidential election campaigns are currently in full swing, with Vice President Kamala Harris and former president Donald Trump each vying to become the 47th president of the United States.
Among the many hot-button issues that have come to define the elections including the economy, immigration and on-going conflicts in Ukraine and Gaza; reproductive health rights, particularly the right to abortion have been particularly controversial.
Indeed, 10 states are set to vote on abortion rights on November 5 in what are referred to as ballot measures.
In 2022, the US Supreme Court in the case Dobbs versus Jackson’s Women’s Health Organisation; overturned the constitutional right to abortion that had been established nearly 5 decades ago in the landmark case of Roe versus Wade.
Before 2022, abortion was permitted in all states up to fetal viability-around 24 weeks. A state could only regulate abortion after the 2nd trimester to protect the life or health of the pregnant person.
The Dobbs decisions changed that, finding that the US Constitution did not protect the right to an abortion. It allowed states to set policies regarding the legality or otherwise of abortion.
The result has been a patchwork of laws across the US with some states outlawing abortions in almost all circumstances while others allowing the procedure with gestational limits ranging from 6 weeks to 24 weeks.
This uncertain legal situation is mirrored in Kenya where article 26 (4) bans abortion unless in the opinion of a trained health professional, there was need for an emergency treatment or the life or health of the mother was in danger or if permitted by any other law; whereas sections 158 to 160 of the Penal Code bans the procuring of an abortion outright.
This creates a grey area that continues to stigmatise abortion and deny thousands of women their constitutional right to the highest attainable standard of reproductive health as espoused in article 43 of the Constitution.
In 2022, Kenya had its own landmark abortion case in Malindi- Pak and Salim Mohammed v. Attorney General et al.; where the judge noted “restrictive abortion laws, coupled with lack of effective laws giving effect to Article 26(4) of the Constitution, expose women and girls to mental and physical health risks that are often associated with unsafe abortion and stigmatises women and girls who seek abortion thereby violating their right to life and the right to highest attainable standards of health.”
The judge went on to note that there was a lacuna or gap in the current statutory scheme to operationalize article 26 (4) of the Constitution and urged Parliament to enact such a law.
In the US presidential debate held on September 10, 2024; Vice President Kamala Harris pledged that when the US Congress passes a bill to put back in place the protections in Roe versus Wade; she would ‘proudly sign it into law.’ Kenya should also move with haste and pass the necessary legislation to guarantee its citizens’ reproductive health rights.
