Time to revisit the abortion law?Monday, July 12, 2021
WE are in the age of the iPhone 12, TikTok, and the rapid growth and transformation of the virtual space. These developments have created a multitude of opportunities and have fast-tracked accessibility to the world around us. And, yet, women in Jamaica do not have access to something as fundamental as safe, legal, abortions. So, yes, this is yet another necessary abortion letter.
It is unfortunate that we are still having abortion debates in 2021, but this is quite frankly because our citizens are divided on the conversation and some of our legislators remain silent when it becomes necessary to dispel certain beliefs. As a result, many of our women continue to suffer due to the physical, social, emotional, and economic costs of illegal abortions.
The fact is that Jamaica is predominantly a religious country, and we must acknowledge and show respect to the religious influences that shape and affect our culture, values, and principles. Women in Action (WIA) is in no way dismissing the importance of religion in our society or the legitimate concerns regarding abortion. However, we must understand that the conversation regarding the lifting of the criminal veil concerning the medical procedure goes beyond the question of morality, and the focus should be the health and autonomy of our women.
Section 72 of the Offences Against the Person Act makes it a felony, which may attract a sentence of life imprisonment, for any woman or person who unlawfully administers to herself, or any woman, poison or other noxious thing, or unlawfully uses any instrument or other means, whatsoever, with intent to procure miscarriage. If the words of the statute were to be interpreted literally and correctly, the question becomes: Should there not then be the recognition of the lawful administering of a drug or use of an instrument to procure miscarriage? If so, what then constitutes lawful or unlawful administering or use?
Indeed, it is the role of the judiciary to interpret the law and determine Parliament's intention in its application. However, as citizens, we have the freedom to question all laws passed to which we must adhere. WIA is of the opinion that if Parliament intended for it to be unlawful for any woman or person to do any of the acts mentioned in section 72 of the Act, in furtherance of procuring miscarriage once the necessary intent is present, then the words of the section should have been less ambiguous.
Furthermore, since we have applied the decision of the English case of R v Bourne  3 All ER 615 to allow an abortion to be performed on the grounds of preserving the pregnant woman's physical and mental health, why is our statute not reformed to remove the absolute criminalisation of the procedure or make provisions for these and other possible grounds? Our neighbour, Guyana, has long since allowed for the lawful termination of pregnancies up to eight weeks and, thereafter, on specified grounds, with the introduction of the Medical Termination of Pregnancy Act of 1955. Reports show that, generally, there has been a reduction in the maternal mortality and morbidity rate in the country and that access to abortions within the public health-care system has, and continues to be, improved.
On the other hand, according to World Bank data, Jamaica's maternal mortality death rate was 89 deaths per 100,000 live births in 2015, with a UN goal to bring this rate down globally to less than 70 deaths per 100,000 births by 2030. Unsafe abortions is one of the leading causes of maternal mortality among our women. How will we then achieve this goal in nine years if we do not reform or have plans to reform our laws to ensure women can access safe abortion procedures?
Ideally, it is our belief that abortions should not be conditional as the woman's choice should be the single determining factor to warrant legal access to the procedure. However, we do acknowledge that certain conditions, such as those mentioned above in R v Bourne supra, may become necessary in legislating the procedure. It would be a move in a much-needed progressive direction if our legislation actually recognises these conditions.
In 2007 the Abortion Policy Review Advisory Group, in its report, recommended to the then Minister of Health Horace Dalley that the relevant sections of the Offences Against the Person Act be repealed and substituted with a Termination of Pregnancy Act to dictate the conditions in which the medical termination of pregnancy will be lawful. It further recommended that the procedure be performed on pregnancies of up to twelve weeks' gestation in registered facilities, but in a formal hospital setting if over twelve weeks. Only in exceptional circumstances should it be performed over 22 weeks. Why were these recommendations not given proper consideration?
We acknowledge that among the public policy concerns are that legalised abortions may result in population decline and that the voice of the putative father or father (as the case may be) may be silenced or disregarded. Our response is that a healthy family life is always encouraged, whereby meaningful discussions are had between the parents if termination is being considered. However, we remain resolute that the ultimate decision should belong to the woman. Further, a number of pro-life advocates are mistaken that those who advocate for pro-choice are encouraging murder and/or large-scale abortions. The actual objective is for women to have all options available to them. These include: pre- and post-abortion counselling with, or without, their partners; access to safe abortions within the public health-care system; and protection under law should they decide, or need, to undergo the procedure.
It is time that we recognise that the need for safe and legal abortions should become a priority and not just a seasonal hot topic. This debate is not a moral issue, but a women's and national issue, and any conversation in this regard must have women at the centre.
For the next abortion debate we must consider whether our personal beliefs should dictate and outweigh a woman's autonomy and health.
— Women In Action
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