Mon | Oct 23, 2017

Abortion, choice and sexual violence

Published:Monday | May 11, 2015 | 12:00 AMTenesha Myrie

In the discussions surrounding the decriminalisation of abortion, it is imperative that we acknowledge that the status of the law does not affect a woman's need for abortion. What it affects is her access to safe abortion.

The World Health Organization, in its 2012 publication titled Safe Abortion: Technical and Policy Guidance for Health Systems, tells us that legal restrictions on abortion do not result in fewer abortions, nor do they result in significant increase in birth rates. Conversely, laws and policies that facilitate access to safe abortion do not increase the rate or number of abortions. The principal effect is to shift previously clandestine, unsafe procedures to legal and safe ones.

The dialogue on access to safe and legal abortions cannot be divorced from its intersection with other societal issues such as sexual violence and women's difficulty in negotiating safe sex. How many of us know or have heard of rape victims who have resorted to back-door or self-induced abortions? What about teenage girls who are victims of rape, statutory rape or incest and are made to undergo unsafe abortions either by their families (including church leaders and educators) or by the perpetrators?

Not only are victims of sexual violence devoid of all choice in the sexual activity, the current law on abortion denies all female victims a choice as to whether they want to continue with a resulting pregnancy. If any rape victim decides to terminate a resulting pregnancy, she can be imprisoned for life.

 

UNCERTAINTY OF THE LAW

 

In countries where abortion is permitted, it is permitted on one or more of the following grounds: (1) to save a woman's life; (2) to preserve the woman's health (physical and mental); (3) in cases of rape or incest; (4) for economic and social reasons; and (5) on request.

Jamaica's law governing abortion is found primarily in the Offences against the Person Act, 1864 and the common law. The Offences against the Person Act, 1864 makes it a felony to unlawfully procure an abortion and a misdemeanour to unlawfully supply drugs to a woman in order to procure an abortion.

However, it does not indicate the circumstances under which an abortion is unlawful or lawful. Reliance is, therefore, placed on a 1938 English case called R v Bourne, which establishes that an abortion will not be unlawful where it is done to preserve the life or physical and mental health of the mother. There is also that savings provision in Section 13(12) (c) of the Constitution of Jamaica, 1962 which protects and prioritises the life of the unborn.

Jamaica's law on abortion has been acknowledged by our government as being unsatisfactory. In 1975, the then Ministry of Health and Environmental Control issued a Statement of Policy on Abortion which noted that because the law governing abortion in its entirety is not stated in any statute, it creates considerable uncertainty in the minds of medical practitioners. This uncertainty was said to inhibit the willingness of medical practitioners to perform operations and, in turn, creates hardships for women who have lawful grounds for abortion as set out under the common law.

Within this policy, the Government of Jamaica committed to amend the law so as to make clear when an abortion would be lawful and to take steps to make rape, carnal abuse and incest lawful grounds for abortion. Of interest is the fact that despite such a clear policy and despite the efforts to address the issue during the 2000s, the law has not been changed.

 

DECISIVE ACTION NEEDED

 

In light of Minister Lisa Hanna's recent bold and unapologetic stance on the issue, the central question is whether our leaders will now take the required legislative and policy measures to help secure women's reproductive health by facilitating access to safe and legal abortions.

Minister Hanna's call should not be construed as a call for poor women to terminate their pregnancies or as an indication that she places little value on the sanctity of life. Quite the contrary, the key point made is that access to safe abortions in Jamaica largely depends on the woman's financial resources.

A woman with the financial resources can access a safe abortion, albeit illegally, from licensed medical professionals in Jamaica or, in some cases, legally abroad. A woman without the requisite financial resources resorts to one or more unsafe means, some of which not only threaten her reproductive health but also risk her life. Minister Hanna's focus is therefore on access as much as it is on choice.

I sincerely hope that Minister Hanna will go a bit further and seek to convince parliamentarians and policymakers to comprehensively address women's reproductive health and rights, especially within the context of sexual violence.

- Tenesha Myrie is an attorney-at-law. Email feedback to columns@gleanerjm.com and tpfmyrie@yahoo.com.