Matric No: 180601222

Course Code: PUL312

The Protocol to African Charter on the rights of women in Africa in its article 14(2)(c) puts an obligation
on state parties to ensure women’s right to safe abortion. Analyzing Roe v Wade and other materials,
share your opinion on the merits and demerits of right to safe abortion.

Abortion involves the intentional termination of pregnancy through the deliberate actions of an
individual. Although the topic of abortion is highly contentious, various countries globally have imposed
restrictions on the procedure. The controversy surrounding abortion primarily stems from conflicting
perspectives on the right to life and the right to privacy. This conflict has given rise to two main
viewpoints known as the pro-life and pro-choice schools of thought.

This discussion sets the stage for analyzing the decision in Roe v Wade and other sources to discuss the
advantages and disadvantages of the right to safe abortion. Subsequently, the paper will examine the
Protocol to the African Charter on the Rights of Women in Africa, particularly Article 14(2)(c), which
places an obligation on state parties to ensure women's right to safe abortion.

The case of Roe v Wade, is an historical case in the discussion of abortion because the US
Supreme Court held that unduly restrictive state regulation of abortion is unconstitutional. A brief fact of
the case is that the appellant challenged a law in Texas that that criminalized abortion. At the
time, abortion was illegal in Texas unless it was done to save the mother's life. It was a crime to get an
abortion or to attempt one. The argument put for by the respondent was that: (i) states have an interest in
safeguarding health, maintaining medical standards and protecting prenatal life; (ii) a fetus is a person
protected by the constitution; and (iii) protecting prenatal life from the time of conception is a
compelling state interest. The argument of the appellant on the other hand was that: (i) the Texas law
invaded an individual’s right to liberty under the constitution; (ii) the law infringed on the rights to
marital, familial, and sexual privacy guaranteed by the Bill of Rights; (iii) the right to abortion is
absolute. In pronouncing its final judgement, the Court agreed with the first two argument of the
appellant but it disagreed with the third holding that the right to abortion is not absolute. The court held
that the only time when an abortion could be said to be legal would be during the first trimester of the
pregnancy.

The legalization of the right to safe abortion first and foremost would help to reduce the rate of
maternal mortality. Statistically, it is evident that the criminalization of the right to abortion has not put a
stop to it. It has only led people consulting non-physicians to carry out the procedure and non-physician
abortion procedures lead to greater percentage of complications and death for women1. In a survey
carried out in Nigeria in 1998, it was revealed that 610,000 abortions were carried out each year between
women and girls in the country and out of this number, only 40% are performed in established health
facilities. This means approximately 60% of these abortions are performed by non-physicians 2. This only
shows how high risk of maternal mortality is in the country because of the criminalization of the
procedure. As reported by the Guttmacher Institute, prior to the Roe v Wade decision, over one million
illegal abortions were conducted in the U.S. each year. Post-Roe, the number of legal abortions remained
approximately one million annually. Nonetheless, the rate of fatalities resulting from abortions
significantly decreased in the years following the Roe decision3.

In addition to the above advantage of the right to safe abortion, constitutional provision for rights
like liberty and privacy would lack completeness if it does not extend to recognizing the woman's right
to bodily privacy and autonomy in decisions about her body. Thus, the constitution should not deprive
women the right to choose when to reproduce, regulate fertility, and make choices about maternity. If
this right is fully recognized, women would not risk their lives on unsafe abortions.

In contrast to the aforementioned advantages of safe abortion, it is crucial to recognize that the
determination of when life commences lies within the jurisdiction of the state. Given the state's
obligation to protect the lives of its citizens, the prohibition of the right to safe abortion reflects the
state's readiness to take significant measures to safeguard a potential life. This could be the reason, for
example, in Nigeria section 45 of the 1999 Constitution provides that the right to privacy and the right
to liberty can be deprived on some circumstances guaranteed by the law. This rationale becomes
apparent in recent legal developments, such as the overturning of the Roe v Wade decision by the
Dobbs v. Jackson Women’s Health Organization case. Allowing the right to safe abortion could imply

1
Victor Nnamdi Opara, Re-Characterizing Abortion in Nigeria: An Appraisal of The Necessity Test.
2
Stanley K. Henshaw et al., The Incidence of Induced Abortion in Nigeria, 24 INT'L FAM. PLAN. PERSP. 156, 162 (1998).
3
Lessons from Before Roe: Will Past be Prologue? (2022, August 30). Guttmacher Institute.
https://www.guttmacher.org/gpr/2003/03/lessons-roe-will-past-be-prologue.
a limitation on the state's authority to protect the lives of its citizens, creating a cap on and constraining
the scope of its power.

Furthermore, while the asserted benefits of the right to a secure abortion include a purported
reduction in maternal mortality risks, this right is not without its complexities. Instances have been
reported where abortion procedures have resulted in loss of life. Although early-stage abortions are
believed to carry minimal risks, there should be arising concern that legalizing abortion might lead to the
acceptance of procedures in the second or third trimester. This is because even while it is illegal, the
procedure is being performed, legalizing it might result in an increase in procedures, potentially turning
it into a profit-driven industry that exploits vulnerable women.

Turning to Africa, abortion is regarded as illegal in almost all its countries. The implication of
this is that there would be a high increase in unsafe abortion because despite the fact that the procedure
is illegal. The only exception provided for medical abortion stems from Article 14(2)(c) on the Protocol
to African Charter on the rights of women in Africa provides that “state parties must protect the
reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape and incest
and where the continued pregnancy endangers the mental and physical health of the mother or the life of
the mother or fetus”. With the ratification of this protocol in 36 States, many states in Africa although
still regarding abortion as illegal has recognized the right of women to abort in situations to save the
woman’s life. Nigeria being one of the countries that ratified the protocol has as an exception to the
criminalization of abortion, when the abortion is done to safeguard the live of the mother.

In conclusion, the author advocates for the legalization of the right to safe abortion. This stance
is based on compelling evidence indicating that despite the current criminalization, the practice persists
in a more hazardous manner. The author proposes that legalizing the procedure, accompanied by
carefully defined guidelines, would be a sensible approach. Such guidelines could specify when the
procedure is permissible, fostering the development of improved technologies to ensure a safer process
and ultimately contribute to the reduction of maternal mortality rates.