Dobbs v. Jackson Women’s Health Organization: Comparative Lessons for the African Region

"Defend Roe V Wade" by Thomas Hawk is licensed under CC BY-NC 2.0.

Judicial canons of constitutional interpretation permit African courts to engage in comparativism. Domestic courts can look beyond their own precedents to draw lessons from other jurisdictions when adjudicating on issues on which foreign jurisprudence shed light.

The African regional human rights system founded under the African Charter on Human and Peoples’ Rights (the African Charter) similarly mandates comparativism under article 60 of the Charter. The value of comparativism does not lie only in drawing lessons from jurisdictions or regions that are similar and, thus, instructive.

There is also analytical value in comparing what is dissimilar and, therefore, distinguishable. The recent decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization clearly belongs to the latter.

In May of this year, a draft majority opinion of the US Supreme Court in Dobbs v. Jackson Women’s Health Organization was leaked to the public. This leaked draft largely corresponds with the final decision of the Court issued on the 24th of June. The judgement not only upholds a Mississippi State absolute ban on abortion after 15 weeks of pregnancy, it also overturns Roe v. Wade, a decision it criticizes as ‘egregiously wrong from the start’.

The trenchant repudiation of Roe has caused consternation among reproductive rights advocates. The judgement has generated shock waves in the U.S. and, to a point, in other jurisdictions that draw inspiration from Roe in the making and interpretation of abortion laws.

Roe, which was decided in 1973, was a patently progressive decision for its day. Drawing on the Due Process Clause of the 14th Amendment of the U.S. Constitution, it developed a woman-centred constitutional right to privacy that overrode state criminalisation of abortion and inspired abortion law reform beyond the U.S. Even if Roe did not come tethered to a recognition of gender equality or a state duty to provide requisite abortion services, it has been transformative in making abortion accessible to American women and ending the scourge of unsafe abortion.

 In contrast, the majority opinion reverses a hard-won gain – a historic precedent. It restores to state legislatures the power to ban or permit abortion in a bid to ‘return the issue of abortion to the people’s elected representatives.’ The judgement speciously frames women as political majorities who can secure the abortion laws they desire through the ballot box.

Doubtless, the majority opinion penned by Justice Alito is a judicial backlash of an extreme kind. It tells us more about the success of the Trump administration in tilting the political balance of the U.S. Supreme Court through appointing politically conservative jurists than about persuasive judicial reasoning.

The robust dissent of the three justices in the minority aside, the judgment studiously avoids recognising pregnant women with unwanted pregnancies as gendered in a polity that is patriarchal. Against the backdrop of abortion as a political and religious battleground in the U.S, the judgement assuages, beyond expectations, the moral majority and Christian Right.

 Forty-nine years after Roe was decided, the majority opinion effectively reconstitutes women as reproductive instruments. If they wish, state legislatures can conscript women to become mothers against their will. The question is what jurisprudential lessons, if any, can the African region draw from the U.S. Supreme Court’s judgement.

The spirited constitutional restoration of state autonomy to regulate abortion in the majority opinion means, foremost, that abortion is no longer a fundamental right for American women. This regressive development is in stark contrast to the progressive trajectory of African abortion laws.

“The robust dissent of the three justices in the minority aside, the judgment studiously avoids recognising pregnant women with unwanted pregnancies as gendered in a polity that is patriarchal.”

Regionally, African abortion laws have been incrementally moving towards recognising access to safe abortion as a fundamental right even if implementation is lagging behind. The Kenya High Court’s decision in PAK v AG delivered just two months before the Dobbs judgement is evidence of the African continent’s continued commitment to the decriminalisation of abortion.

In 2003, the African regional human rights system adopted a supplementary treaty to the African Charter - the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) – in response to the legacy of colonially inherited abortion laws that have historically been shaped by a crime and punishment model and are heavily implicated in the regional burden on unsafe-abortion-related mortality and morbidity, the African regional human rights system adopted a supplementary treaty to the African Charter.

For the first time in a human rights treaty, Article 14 of the Maputo Protocol recognises abortion as a woman’s right. States are obliged to decriminalise abortion. More than two-thirds of African states have ratified the Protocol. While it falls short of recognising abortion on request, Article 14 permits abortion on grounds of risk to the health or life of the pregnant woman, risk to the life of the foetus, incest or rape.

More than just recognise abortion as a fundamental right, Article 14 conceives abortion as a reproductive health right. It requires the state to provide services that are available, accessible, acceptable and of good quality. Article 14 is framed around gender equality.

The Maputo Protocol draws inspiration from global soft laws, including the norms developed by the International Conference on Population and Development, the Beijing Platform of Action, the World Health Organization, and United Nations treaty-monitoring-bodies to conceive abortion as a gendered health service that women are entitled to.

This normative diffusion is inscribed in the broader provisions of Article 14 of the Maputo Protocol and the interpretive guidance on the Protocol’s abortion provisions issued by the African Commission on Human and Peoples’ Rights in 2014 in General Comment No. 2.

In a nutshell, the majority opinion in  Dobbs v. Jackson Women’s Health Organization is an absolutely negative lesson for the African region and African women. Its refusal to recognise women with unwanted pregnancy as gendered moral subjects with decisional constitutional authority in respect of abortion is a manifest denial of the equality and human dignity of women. In any event, African regional jurisprudence is different from the historical tradition developed by Roe of framing the right to abortion as right of privacy.

Gender equality is the juridical basis for the right to abortion under the Maputo Protocol. The judgement presents an opportunity for the African human rights system to affirm its differences with a jurisdiction that has moved to infantilize women and created an enabling constitutional environment for reinstituting the criminalization of abortion to appease moral majorities and the Christian Right.