Kenyan court rules there is no fundamental right to abortion

A court of appeals in Kenya last week struck down a previous ruling that had declared a fundamental right to abortion. In its decision, the court declared that instead, abortion deprives the preborn child of the right to life, which begins at conception.

Key Takeaways:

• Kenya's Court of Appeals has ruled that there is no fundamental right to abortion in the country's constitution.

• The ruling overturns a high court's 2022 decision, which had considered abortion a fundamental right.

• That decision came after a teen and her doctor were arrested for illegal abortion in 2018, setting off a legal battle. Though news outlets say the teen had a miscarriage, it is alleged that she instead used an abortion-inducing drug.

• The Center for Reproductive Rights says it plans to appeal to the Kenyan Supreme Court.

The Details:

On Friday, the Kenyan Court of Appeals issued a ruling that overturned a previous decision of the high court. The latest ruling maintains that the constitution guarantees the right to life for the child.

"In effect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the constitution expressly prohibits it but provides exceptions in limited circumstances where it may be permissible,” the court ruled.

According to news outlets, those "limited circumstances" include cases where a doctor decides that an abortion is necessary to save the life of the mother. According to the Associated Press, the penalty for committing or procuring an abortion outside of these parameters is up to 14 years in prison.

The Life Integrity Network, which operates in Kenya, praised the ruling.

"This judgment rightly reaffirms that the right to life under Kenya’s Constitution extends to the pre-born. It restores legal clarity and upholds the inherent dignity and value of every human life from conception," the organization said. "We commend the judges for their fidelity to the Constitution and for safeguarding this foundational principle."

The Center for Reproductive Rights, which pushes for the expansion of abortion, especially across traditionally pro-life African nations, called the ruling a "setback" and says it plans to appeal to the country's Supreme Court.

The Backstory:

In 2019, a teenager and her doctor were arrested for undergoing an illegal abortion. News reports are widely reporting that the teen had a miscarriage and the doctor was only providing subsequent treatment. However, according to Harvard Law Review and shared by The Life Institute, authorities believed the loss was not a natural miscarriage, but was instead an intentional act of abortion.

Harvard Law Review writes:

“On September 19, 2019, “PAK,” a pregnant minor, began experiencing pregnancy complications in Ganze Location in Kilifi County in Kenya. Seeking care for the pain and bleeding, PAK visited Chamalo Medical Clinic. She was attended to by Salim Mohammed, a licensed clinical physician, who performed a manual evacuation after determining that she had suffered a spontaneous loss of her pregnancy.” 

The Harvard Law Review goes on to specify:

The case against PAK alleged that she had self-administered drugs which led to her miscarriage (thereby “procuring abortion” contrary to section 159 of the Penal Code). Mohammed was charged in the same case on two counts: “procuring abortion” (contrary to section 158 of the Penal Code) and “supplying drugs to procure abortion” (contrary to section 160 of the Penal Code).

A true miscarriage is a spontaneous, natural loss of pregnancy. Abortion is the direct and intentional killing of the preborn child, which can be procured through the chemical abortion pill or other abortion-inducing drugs.

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The duo's arrest led to a significant legal battle in the case AK and Salim Mohammed v. Attorney General et al. In 2022, the high court ruled in favor of PAK and Mohammed, declaring abortion as a fundamental right within the constitution.

The Court of Appeals ruling states that only a criminal trial can determine whether PAK had a natural miscarriage, or intended abortion via abortion-inducing drugs. With its ruling, the criminal trial will proceed.