Johannesburg — On the night of 2 May 2022, we woke up to news that a Roe versus Wade draft decision by the U.S. Supreme Court had been leaked indicating that the ruling in that abortion case might be overturned. Abortion is not only at the center of American political discourse but in Africa as well. This article explores the implications for Africa.
When this unprecedented leak surfaced, a protester held a pithy placard declaring that “women’s rights are human rights and forced birth is a crime against humanity”. In view of the current developments, it is worthwhile reflecting on the history of the case.
The polarized debate in the United States has inspired similar debates in Africa.
In the 1973 decision, the Supreme Court ruled that the Constitution of the United States of America protects pregnant women’s liberty to choose to have an abortion without excessive government regulation and restrictions. This was viewed as a landmark decision for women’s health issues in the United States and indeed the rest of the world, Africa included. The ruling highlighted that abortion was a right protected under the Constitution. Since 1973, the case has been the basis for state laws regulating the way abortion can be offered and ancillary services can be provided.
In 1992, in the case of Casey versus Planned Parenthood of Southern Pennsylvania, the Supreme Court reconsidered the law that needed spousal awareness prior to obtaining abortion. The court ruled that the need for spousal awareness created undue burden on married women seeking abortion. This ruling aided in deciding the Constitutional test standard for determining the extent to which U.S. states could regulate and restrict standards for abortion.
The case has always been about the viability of a pregnancy as a U.S. state can choose to ban abortion with exception of the safety of the mother. This has resulted in states regulating the way that abortion can be offered. However, it is important to note that there is still a guarantee that in every state the legislature can foreclose abortion. In other words, abortion laws differ from one American state to another with some being extremely restrictive while other are more liberal and accommodative of abortion.
In 2018, the case of Dobbs versus Jackson Women’s Health Organization was brought before the Supreme Court to interrogate the constitutionality of the 2018 Mississippi State law that banned abortion operations after the first 15 weeks of pregnancy. It should be noted that 15 weeks of pregnancy is well before the point of fetal viability. This raised questions on whether there was a constitutional right to abortion or whether state legislatures had the power to override a right to abortion.
This debate has been a hot button issue between the Democrats and Republicans drawing in ideological positions in which the former is more accommodative of abortion while the latter are dead set against abortion. These debates have figured prominently in America’s electoral circles.
Since early May 2022 a leak pointing to the possibility of Roe v Wade judgement being overturned has been the center contention. This has become a polarized debate between Republicans and Democrats in the United States and has inspired similar debates in Africa.
The draft opinion that was leaked seems to show that the contentious abortion issues should be decided by the states and not at the federal level. This would mean that the elected officials would have the responsibility of addressing the abortion matters on a state-by-state basis with little or no involvement of the national governance mechanisms. The implication is that the right and ability of for women to have a say over their own bodies is a matter left to officials.
It means that women will have to delegate their livelihood rights to state governments, which flies in the face of the individual rights that underlie the American democracy, a democracy that is often the point of reference in Africa.
What happens if Roe v Wade is overturned
If the 1973 Supreme Court Roe v Wade ruling is overturned, it will become incumbent on each state to decide on abortion, effectively taking the right of women to decide whether they want an abortion or not. The problem this creates is that it limits women from having autonomy over their own bodies. The people who will be affected primarily by these laws are women who lack resources to travel to U.S. states with more liberal abortion laws and women who don’t have full access to health care. For example, if Roe v Wade is overturned it means that poor women with no resources will not be able to fund their own travels to go to states where abortion might still be permitted. It is estimated 26 of the 50 states are likely to outlaw abortion immediately if Roe v Wade is overturned.
Regulation of abortion in Africa
As with the United State, abortion issues in Africa are equally controversial. The state of abortion in Africacan be classified into six categories.
The first category is that of prohibition with no legal exception. Countries in this category include Angola, Congo Brazzaville, Congo Kinshasa, Egypt, Gabon, Guinea Bissau, Madagascar, Mauritania, Sao Tome and Principe and Senegal.
The second category is in countries where abortion is legally allowed to save a life of a woman. Countries in this category include Cote d’lvoire, Libya, Malawi, Mali, Nigeria, Somalia, South Sudan, Sudan, Tanzania, and Uganda.
In the third category, abortion is allowed under the conditions of preserving life in Benin, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Comoros, Djibouti, Equatorial Guinea, Ethiopia, Guinea, Kenya, Lesotho, Niger, Rwanda, Togo, and Zimbabwe.
In the fourth category, abortion is allowed for the preservation of physical and mental health. Countries in this category Algeria, Botswana, Eritrea, Gambia, Ghana, Liberia, Mauritius, Mozambique, Namibia, Seychelles, Sierra Leone, and Swaziland. Zambia allows women to abort if it saves or preserves physical health.
In the fifth category, abortion is allowed without restriction to reason but with gestation limits in four countries – Cape Verde, Mozambique, South Africa, and Tunisia. These results are an indication of how limiting the provision of abortion is on the African continent.
If Roe v Wade is overturned, law makers might see the overturning of Roe v Wade as reason not to update some of these draconian laws that most African women are exposed to.
Why Africans should care about the developments in Roe v Wade
The global gag rule is a U.S. policy that blocks U.S. federal funding to nongovernmental organizations (NGOs) that provide abortion counselling, or referrals, advocating to decriminalize abortion or expand abortion services. The global gag rule affects even women in Africa because it prohibits foreign nongovernmental organizations who receive U.S. global health help from providing legal abortion services or referrals while barring advocacy for abortion law reform. A Kenyan study in 2020 found that the Kenyan government was using the U.S. position to restrict conversations around abortion in official meetings.
Shifts in U.S. abortion policy impact policies in Africa
The policy allows abortion only in cases of rape, incest, or when a woman’s life is at risk. U.S. presidents since 1984 have had the power to enact or revoke this policy. During Trump’s presidency the policy was revoked, and a number of critics argue that the former president was weaponizing U.S. foreign assistance by employing the global gag rule. During the Biden administration, the global gag rule has been repealed. These shifts in policy in the United States impact policies in Africa and can lead to greater limitations in African countries that already have restrictive rules towards abortion.
Under United Nations Agenda 2030, known as the Sustainable Development Goals (SDGs), goal number three aims to ensure access to sexual and reproductive health care services, family planning, information and education, and the integration of reproductive health into national strategies and programmes.
The progressive aims of this goal will suffer a major blow if Roe v Wade is overturned because the United States is a major funder of African health programs. The Guttmacher Institute has published evidence showing that banning abortion does not reduce the number of illegal abortions that take place. According to World Health Organization data, 4,7 % – 13,2 % of maternal deaths are attributed to unsafe abortion.
The stats show that African countries with restrictive abortion laws have high numbers of maternal deaths resulting from illegal abortions being conducted in backdoor clinics. African women have been denied the right to choose. Overturning of Roe v Wade precedent will only increase the negative sentiments around abortion and likely will be used to bolster restrictions denying rights to women’s health in African countries that are looking to revisit their abortion laws.
Abortion matters should be left to women under the principle of the right of choice. Debates about pro-choice or pro-life should be guided by the varying circumstances that may lead one to choose to abort. As other areas of our laws evolve, we need to reexamine and challenge the reasons behind shunning away from having conversations around what the implications of prohibiting abortion are. Future programs and policies should be voiced by women as they are the most affected.
While Roe v Wade may appear to be a matter of interest only in the United States, the potential repercussions across Africa mean that civil society, intellectuals and politicians should robustly weigh in on the side of protection of the rights of women to decide.
The writer is a public diplomacy researcher at the African Centre for the Study of the United States at Wits University email Amukelani.email@example.com