BY Heena Joshi IN the United States, federal law is the body of law created by the federal government and State law is the law of each separate US State, as passed by the State legislature and adjudicated by State courts. It exists in parallel, and sometimes in conflict with United States federal law.
Roe Vs Wade (1973), a landmark case that deliberated that the unduly restrictive regulation on abortion was unconstitutional and thus granted the rights of women; ruled that the constitution of the United States conferred the right for women to have an abortion. The court held that a set of Texas statutes criminalising abortion in most instances violated a woman’s constitutional right to privacy, which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment. This case gave women the constitutional protection for abortion.
Almost 50 years later, in June 2022, the United States Supreme Court overturned Roe Vs Wade, maintaining that the US Constitution “does not confer a right to abortion … and the authority to regulate abortion is returned to the people and their elected representatives.” What does this effectively mean? The Supreme Court struck down a decision that upheld and recognised a woman’s constitutional right to abortion. Overturning Roe Vs Wade equates to a likelihood that State law across the US will begin introducing restrictive laws on the right to abortion.
Reverberations of this ruling are being met with disbelief across the US as well as internationally and has intensified public opinion post-ruling. What the case of Roe Vs Wade did was to recognise the right to personal privacy under the constitution and protected a woman’s ability to terminate her pregnancy. Constitutional rights, as in most countries around the globe, are enshrined and the decision to strike and overturn abortion rights as set out in this exemplary case, basically renounces women’s rights, and depending on the State of residence will curtail or restrict access to abortion.
Back in 1973, the deliberations before the US Supreme Court, considered the different views on when life begins but the court reflected that it was not stated within the constitution that an absolute right to an abortion existed. Instead, a framework to balance the State’s interests with privacy rights was created. Acknowledging that the rights of pregnant people may conflict with the rights of the state to protect potential human life, the court defined the rights of each party by dividing pregnancy into three 12-week trimesters:
During a pregnant person’s first trimester, the court held, a State cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
During the second trimester, the court held that a State may regulate abortion if the regulations are reasonably related to the health of the pregnant person.
During the third trimester of pregnancy, the State’s interest in protecting the potential human life outweighs the right to privacy. As a result, the State may prohibit abortions unless an abortion is necessary to save the life or health of the pregnant person.
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While nationally in the US, women will demonstrate and protest to re-validate their constitutional rights over the particular change that will take place under the reversal, we look closer to home at the constitutional rights of women in our country, Zimbabwe. Much like the US Constitution, the Zimbabwean Constitution is the supreme law of the land, and any law that is inconsistent with it is void.
The Constitution here is clearer than the US Constitution, in that it defines the right to life as sacrosanct, and even the right of the unborn. Thus, safeguarding the interest and welfare of a life in respect of every human being which shall have the right to life and human dignity; the life of the foetus shall be protected from the moment of conception. The unborn shall be considered as born for all rights accorded within the limits established by law. “Pro-life” is for the protection of the foetus right to life but the Constitution does not deflect its responsibility to women’s rights to their own decision making.
In fact, Zimbabwe has ratified international and regional conventions that seek to promote women’s rights. Sections 17, 56 and 80 of the Zimbabwe Constitution promotes the rights of women in all spheres of life and is widely acknowledged for its emphasis on gender equality. Particularly, within the Declaration of Rights, under Chapter 4, it recognises that all men and women have a right to equal treatment. The section also states that there should be measures to promote women’s equality to address unequal power relations that exist, which is a substantive equality approach.
The foundational document presented by women’s rights groups for the Constitution, commonly known as the women’s charter (2000), sought to establish the rights of women under sections 10 and 12 specifically of this charter they sought the right and access to safe abortion, as well as the right for women to control their bodies and their sexuality. This would categorise as “Pro-Choice”, the right to bodily autonomy.
However, it is the Termination of Pregnancy Act (TOP) [Chapter 15:10], that governs how and when a women may terminate a pregnancy and stipulated here are the circumstances in which pregnancy may be terminated.
Subject to this Act, a pregnancy may be terminated — (a) where the continuation of the pregnancy so endangers the life of the woman concerned or so constitutes a serious threat of permanent impairment of her physical health that the termination of the pregnancy is necessary to ensure her life or physical health, as the case may be; or
(b) where there is a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will permanently be seriously handicapped; or
(c) where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse.
Therefore, legal abortion is limited under circumstances of rape, incest, fetal impairment or substantially to save a woman’s life. The law governing the practice of access to legal abortion is also very stringent, with a medical practitioner having to require the superintendent of an authorised medical body’s concession for the abortion to be carried out. Further legal and administrative barriers in the TOP Act, are so onerous they equate to deterrence. Effectively, the law creates an environment supporting the moral interrogation of abortion, and is, therefore, curtailing women’s rights, and denying them the liberty to seek termination for any other means.
Constitutional rights are not to be bargained or negotiated, but circumstances change and vary significantly. The rights of women in Zimbabwe are being protected by the law through the fact that under-privileged women are exposed to unsafe and uncertified practitioners that conduct illegal abortions when the individual that seeks to terminate a pregnancy does not fall into the categories as specified under the law, due to unplanned and unintended pregnancy.
Women of our continent comprehend the enormity of the problem, which is why the advocates for enhancing women’s rights to health and termination of pregnancy have co-operated highly with the family planning organisations within government to ensure unplanned pregnancies are minimised, through education and health and sexual literacy particularly in the younger active age groups.
The rising tide of Womens Rights here recognise that “Pro-life” is enshrined constitutionally and advocates pushing more to advance the access to maternal care as a priority over “Pro-Choice”.
Abortion is a hot issue, and will always be debated intensively, and as the US Supreme Court in its judgement cited the following;
“One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.”
We can concur with the philosophy in the above reasoning, while we remind ourselves that Constitutions are viewed as the natural promising source of domestication of international human rights law for all beings, and that the right to self-determination in respect of our reproductive health issues belongs to us, fundamentally and entirely. Something to consider is whether our laws disenfranchise our choices as women particularly if the TOP Act recognises violence against our bodies, that creates a life, can result in our choice and permissions to terminate and an unplanned pregnancy does not constitute or validate such a choice. The writer is of the view that our Constitution stands by its principles of “pro-life”, and regards health literacy, edification and learning around women’s health to determine societal outcomes. Bodily autonomy is a contradiction, and our constitutional rights, civil liberties and moralities are yet to evolve into the entitlement of it. The time will come to redress and amend these artificial set of permissions.
- Heena Joshi is a corporate and commercial law consultant with Titan Law. She writes here in her personal capacity.
