The US presidential election campaign is currently in full swing, with Vice President Kamala Harris and former President Donald Trump competing for the position of the 47th President of the United States.
Among the many hot-button issues that have come to define the election, including the economy, immigration, and the ongoing conflicts in Ukraine and Gaza, reproductive health rights, especially the right to abortion, have been particularly contentious.
In fact, 10 states are scheduled to vote on abortion rights on November 5 in what are referred to as ballot measures.
In 2022, the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to abortion established nearly five decades ago in the landmark Roe v. Wade case.
Before 2022, abortion was allowed in all states until the fetus was fully viable — about 24 weeks. A state could only regulate abortion after the second trimester to protect the life or health of the pregnant woman.
But the Dobbs decisions changed that, finding that the U.S. Constitution did not protect the right to abortion. It allowed states to set policies regarding the legality or illegality of abortion.
The result was a patchwork of laws across the United States, with some states banning abortion in almost all circumstances, while others allowed the procedure within gestational ages of 6 to 24 weeks.
This uncertain legal situation is reflected in Kenya where Section 26(4) prohibits abortion unless there is an opinion from a trained health professional, emergency treatment is needed or the life or health of the mother is in danger or if otherwise permitted by law; while Sections 158 to 160 of the Penal Code prohibit abortion outright.
This creates a grey area that continues to stigmatize abortion and deprive thousands of women of their constitutional right to the highest attainable standard of reproductive health as enshrined in Article 43 of the Constitution.
In 2022, Kenya witnessed a landmark abortion case in Malindi Baak and Salim Mohammed v Attorney General and Others, where the judge noted that “restrictive abortion laws, coupled with the lack of effective laws to give effect to section 26(4) of the Constitution, expose women and girls to the mental and physical health risks often associated with unsafe abortion and stigmatize women and girls who seek abortions thereby violating their right to life and their right to the highest attainable standard of health.”
The judge pointed out that there was a loophole or a lacuna in the current legislative system to implement Article 26 (4) of the Constitution and urged Parliament to enact such a law.
In the US presidential debate on September 10, 2024, Vice President Kamala Harris pledged that when the US Congress passes a bill to restore the protections enshrined in Roe v. Wade, she will “proudly sign it into law.” Kenya should also move quickly and pass the necessary legislation to guarantee the reproductive health rights of its citizens.