“Abortion, abortion, you got to have caution” – chorus from Abortion, Black Uhuru (1979)

On Friday, July 23, 2022 the US Supreme Court in a 6-3 ruling overturned the decision in Roe v Wade which gave citizens the constitutional right to abortion. This ruling made international news and triggered swift and passionate response on this divisive issue from detractors and supporters alike.

Justice Clarence Thomas, in his concurring opinion on the decision, gaslighted the wider cultural debate by indicating that the same rationale that the Supreme Court used to declare there was no right to abortion should also be used to overturn cases establishing rights to contraception, same-sex consensual relations, and same-sex marriage.

A new research by the College of Business and Management at the University of Technology, Jamaica explored the public attitudes on abortion and a number of other social issues. The survey was conducted between April 4 and May 7, 2022 in preparation for the Joan Duncan Annual Lecture, which was aired on TVJ on May 15, 2022 under the theme ‘A suh de ting set…’

Abortion in Jamaica needs to be examined from two perspectives what is de jure (the law) and what is de facto (the practice). Under the Offences Against the Person Act (1864), any person who, intending to procure a miscarriage, regardless of whether the woman is with child, unlawfully administers to her any poison or noxious thing or unlawfully uses any instrument or other means to the same end is subject to life imprisonment, with or without hard labour. A pregnant woman who acts in the same way with respect to her own pregnancy is subject to the same penalty. The statute also provides a maximum penalty of three years’ imprisonment for anyone who assists in procuring an unlawful abortion. This is the statute law or de jure law.

The de facto law or, using more contemporary parlance, “a suh de ting set” suggests that illegality is a social class construct. The Caribbean Policy Institute (CAPRI) roughly estimates that upwards of 22,000 pregnancies are aborted annually. CAPRI argues further that the illegality of abortion only affects poor women. Safe abortions are available to well-off women who can afford them. Poor women attempt to terminate their pregnancies by taking pills bought from the black market without medical supervision, or concoctions; or they go to unlicensed, untrained abortion providers in unregulated settings. Many of these abortions are unsafe and present a high risk of complications or even death according to CAPRI.

A 2005 Ministry of Health report corroborates CAPRI and adds that most of the women admitted to Ward 5 (the abortion ward at the Victoria Jubilee hospital) were young, poor, unemployed, and lived in economically and socially deprived communities.

Our research indicated that few Jamaicans look at abortion from an absolutist pro-life or pro-choice perspective. One in four (25 per cent) of Jamaican adults say abortion is never justified. This is contrast with a June 2006 public opinion survey in which 53 per cent of Jamaicans said abortion should be illegal. In the current survey one in ten (10 per cent) believed that abortion is always justified. The other 65 per cent of the adults surveyed have a nuanced attitude on the issue, either saying it should be mostly illegal or mostly legal. This finding suggest that most Jamaicans favour a more liberal abortion law.

The Center for Reproductive Rights specifies five stages of the law on abortion from its most restrictive to its most liberal, each succeeding stage includes the preceding provisions. (See table)

Jamaica is among the 24 countries with the most restrictive and punitive abortion laws in the world and our only regional companion is Haiti. The Ministry of Health Abortion Policy Review Advisory Group, in its 2007 report, indicated that the nature of Jamaica’s abortion law makes it very difficult to obtain accurate statistics as to the prevalence of abortion and its complications because of a tendency to conceal facts and veil intentions which could be considered illegal.

The report continued: As far as we can ascertain, the complications of unsafe abortions constitute the eighth leading cause of maternal deaths in Jamaica and the second in the adolescent age group. It should be noted that no action was taken on the 2007 report nor on a prior 1975 Ministry of Health paper under Health Minister Ken McNeill, titled ‘Abortion: Statement of Policy’.

So what changes should be made to the current law. We are currently in Category 1; however, Category 2, termination of pregnancy if the woman’s life is at stake, is done as a matter of course and it is not reported or defined as an abortion.

The 2007 report recommended the repeal of the relevant sections of the Offences Against the Persons Act, and substitute it with a civil law, titled ‘Termination of Pregnancy Act’, stating the conditions under which medical termination of pregnancy would be lawful. The 2007 report recommended a radical change from Category 1 to Category 5 in which “Pregnancies up to 12-weeks’ gestation (calculated from the first day of the last menstrual period) can be performed in registered facilities by an authorised medical practitioner in consultation with the woman. Jamaica was not ready for such a radical change. In fact, successive governments have been reticent to make any changes conscious that this is not only a public health and legal issues, but also ethical and sociological issue.

Professor Paul Golding is former dean of the College of Business and Management at the University of Technology, Jamaica. Send comments to the Jamaica Observer or pgolding@utech.edu.jm.