Civil society defends 'gaps' in the High Court abortion judgement

Civil Society Organisations have demanded that the Government makes available the necessary drugs and medical supplies to enable resumption of safe abortion services.

This comes a day after High Court reinstated the 2012 safe abortion guidelines. The drugs include Medabon, which the Director of Medical Services banned in 2014 in a memo that also barred all medics from participating in any training on safe abortion.

The Centre for Reproductive Rights (CRR) and Federation of Women Lawyers in Kenya (Fida) among other CSOs now want the ban on abortion drugs lifted and compulsory training on safe abortion conducted for all medical professionals.

This latest call is clear demonstration of the Pandora’s Box opened by Wednesday’s judgement that ordered the return of safe abortion guidelines.

The judgment by a five judge bench declared abortion legal in cases where the health of a woman or girl is at stake. They also defined a woman’s health to include mental and social well-being.

The judgment specified that abortion should be performed by a trained health professional, which critics say includes almost every cadre in the health profession, from nurses, midwives, clinical officers to doctors.

On this, reproductive rights groups have defended the judges, saying the judgement was cognizant of the fact that not everyone can access a medical doctor.

“Most of them (women) are from low socio-economic backgrounds, so if we then limit to medical doctor, are we not discriminating against these women?” posed Lydia Muthoni, a human rights lawyer working with CRR.

Ms Muthoni argued that one of the biggest challenges in the country’s health sector was that doctors were not available in rural areas.

“If nurses and midwives can deliver babies, why can’t they also procure abortion to save the life of the mother?” she said.

She argued that if the Government trains all health professionals on safe abortion, then there would be reduced cases of quacks performing backstreet abortions.

Backstreet abortion

Wednesday’s ruling was triggered by the case of one JM, who developed complications after a backstreet abortion attempt and later died. She had been raped.

The judges reprimanded a public hospital and the Ministry of Health for denying JM post-abortion care.

The ruling sparked debate among legal experts. “The court was emphatic that it is not about the cause of pregnancy but the effect of it on the woman or girl. There is no woman that can conceive as a result of rape and their mental state remains the same,” argued Christine Alai, a legal expert on human rights.

Evelyne Opondo, senior regional director at CRR, said it should never be assumed that women will procure abortion just because they do not want babies.

“Not all cases that will warrant abortion are from unwanted pregnancies. The woman could have been diagnosed with advanced cancer that needs chemotherapy or it could be an ectopic pregnancy,” she said.

Martin Onyango, CRR’s Senior Legal Adviser, said being healthy was no longer limited to the absence of disease. “The abortion decision will be made, not by the patient herself or some bystander, but a trained health professional,” he said.