The right to abort is compelling
June 5, 2007
As the debate to legalise abortion sweeps the country, a startling issue of the competing rights of the unborn, the expectant mother and those of the father has emerged.And yet again, there seems no consensus among the different interest groups about which of the competing rights should take precedence over the other. These are legitimate concerns about the complex issue of the right to life.The anti-abortion lobbyists have wrongly portrayed abortion as being a sacrificial practice. Permitted, everyone has their views but I believe a case can and should be made that much of the discourse in the anti-abortion movement is also about sacrifice.The competing interests/rights of the mother, unborn child and that of the father have been tested in courts of law where the majority of the leading decided cases are rightly in favour of the right to reproductive health which encompasses the right to reproductive self-determination of a woman.The 1973 Roe v. Wade US Supreme Court decision is the leading authority on this matter. A single, pregnant woman in the state of Texas wanted to get an abortion. The state laws of Texas (just like our laws) at that time made it illegal to have an abortion in Texas...So the woman decided to sue the state claiming that her constitutional rights were being taken away from her. The state court ruled in her favour but the decision was not strong enough to change the arrests of abortion doctors in Texas so she took her case to the Supreme Court. The principal thrust of her complaint about Texan laws was that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. The learned Justice Blackburn, who delivered the lead judgment, noted that court resolved the issue by constitutional measurement, free of emotion and of predilection. The court also inquired into, and placed some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries.And in granting the woman the right to abort, the court stated that where certain “fundamental rights” are involved, regulations limiting those rights may be justified only by a “compelling state interest.”There is another interesting case of Christian Lawyers Association of South Africa and others vs Minister of Health and others where the Christian brothers and sisters argued that the right to life includes a foetus from the moment of conception.The court was candid and stated that by extending the interpretation of the right to life to include the protection of a foetus would violate a woman’s constitutional rights. The European Court of human rights has made similar decisions over time, and the position that the right to life does not extend to a foetus is now well entrenched in its jurisprudence.What about the rights of the male folk who claim parentage of the foetus? Mind you, in the majority of cases it is these same men who after abdicating their parenting responsibilities lead women to make the difficult decisions to abort.The European Court of human rights has decided on this right when prospective fathers have petitioned it to stop their wives from having abortions. The court has held again, and rightly so, that the mother’s wishes are paramount and take precedence (emphasis mine) and that any law that seeks to take away the power to decide what is best for her is discriminatory. Courts of law have been emphatic that a pregnant woman‘s right as a person primarily concerned by the pregnancy and its continuation or termination supersedes any rights of the ‘potential father’.The right to health is also provided for by the African Union Protocol on the Rights of Women in Africa and it allows women the right to decide whether to have children or not, the number of children to have, and their spacing; to choose any method of contraception; control of fertility and to have family planning education.The government of Uganda is a signatory to these international instruments and should therefore ensure compliance to their provisions and should legalise abortion to allow a woman freedom of choice.
Next week: The effects of the recent illegal amendments to the East African Community treaty.
The writer is a journalist/ email@example.com 43 46 77