In 1970, Jane Roe (fictional name used to protect the identity of the plaintiff) sued Henry Wade, the district attorney of Dallas County, Texas, where she lived. Roe’s lawsuit challenged a Texas law that made abortion illegal except for a doctor’s orders to save a woman’s life. Roe alleged, in her lawsuit, that the state laws abridged her right of privacy protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments and were unconstitutionally vague.
Contained in the Due Process Clause of the Fourteenth Amendment is the “right to privacy,” which is considered a fundamental human right. This right protects the choice of a pregnant woman to either have an abortion or not. However, this right stands against the government’s interest in safeguarding women’s health and protecting the “potentiality of human life.” Even though the state may possess legitimate interests in the protection of the health of pregnant women and potential human life, the weight of these interests do not remain the same throughout pregnancy and the law must acknowledge this variability.
Before the Roe v Wade case, the purposes for banning abortions ranged from the preservation of the life of the fetus and protecting the life of the mother to deterring future abortions and avoiding injuring the mother’s ability to have children. In January 1973, presiding Chief Justice Harry Blackmun delivered a 7-2 decision for the majority of the court in favour of “Jane Roe.” Justice Blackmun’s opinion stated that “the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage.”
In light of the May 2022 revelation that the Roe v Wade decision may be overruled, the conversation on abortion rights has taken centre stage worldwide with many women speaking up against the potential decision and terming it “archaic.” On Tuesday the 3rd of May 2022, the Supreme Court in Washington DC confirmed the authenticity of the leaked draft, while noting that the draft “does not represent a decision by the Court or the final position of any member on the issues in the case.” Speaker of the United States House of Representatives, Nancy Pelosi condemned the draft written by Justice Samuel Alito and accused the court of “brazenly ignoring 50 years of its own precedent.” House Republican leaders, on the other hand, have issued a joint statement claiming the contents of the draft is “a decision that protects our most basic and precious right, the right to life.”
Nigeria’s Abortion Laws
The consequences of the call to overrule the Roe v Wade case cannot be overlooked, especially here in Nigeria where abortions remain largely illegal. Nigeria’s abortion laws are quite restrictive, with abortions only considered legal when performed to save a woman’s life.
The Nigerian criminal law system is divided between the southern and northern states of Nigeria. In the southern states, the Criminal Code is enforced and under the code, abortion laws are contained within sections 228, 229, and 230. Section 228, states that any doctor who provides an abortion to a woman is guilty of a felony and can receive up to 14 years of imprisonment. Section 229 states that any woman who obtains a miscarriage is guilty of a felony and can be sentenced to imprisonment for up to 7 years. Section 230 states that anyone who supplies anything intended for a woman’s miscarriage is also guilty of a felony and can be sentenced to up to 3 years imprisonment.
The northern states are subject to the Penal Code which contains abortion laws in sections 232, 233, and 234. The sections of the Penal Code are similar to the Criminal Code, except for abortion to save the mother’s life. The punishments of the Penal Code include imprisonment, fines, or both and in both codes, the offences are punishable whether or not the miscarriage was successful.
Several groups and movements have been mobilized throughout history, to oppose missions regarding the reform of abortion laws and the promotion of women’s rights. The first attempt to liberalize abortion laws in Nigeria was made at the 1972 Nigerian Medical Association (NMA) conference. This attempt was met with a lack of support, resulting in no revisions. Several other groups have advocated for women’s right to choose safe and legal abortions to no end. Some of these groups include the National Population Council (1975) and the Campaign Against Unwanted Pregnancy (CAUP). Despite the continued combined efforts of different Nigerian and international advocacy groups, a woman can only undergo a legal abortion if her life is endangered.
It is not clear what the criminalization of abortions in Nigeria is supposed to achieve, but one thing is certain, it has not reduced the number of abortions carried out in the country. According to the Guttmacher Institute, one in four pregnancies are unintended and in 2012, one in seven pregnancies ended in an abortion. These abortions are illegally conducted, serving as a leading contributor to the high levels of maternal death in the country and placing a huge burden on the country’s health system. A 2013 study also revealed that the use of contraceptives in Nigeria remains low, with only 16% of women aged (15 to 49) making use of them, implying that in a society like Nigeria, the use of contraceptive methods is not enough to prevent unwanted pregnancies.
Women who have unplanned pregnancies and desire abortions should have the liberty to get the medical attention they require legally. Healthcare in this modern-day has progressed enough to make safe abortions a reality, so the worry of resulting infertility or botched abortions can no longer be considered a valid fear. Terming abortions illegal does not stop women from getting these abortions, instead, it puts them at more risk because they have to get these procedures done at the hands of unlicensed quacks. When all facts are carefully considered, they point to the need for informed perspectives in debating legal reforms which will grant access to legal, safe, and comprehensive abortion care for all Nigerian women.