Letter to the Editor: Continued retention of laws criminalizing abortion undermines women’s enjoyment of the right to a dignified life

We are fast approaching the end of another year yet continue to cling to an anachronistic law that criminalizes abortion categorically. As is well known, sections 72 and 73 of our Offences Against the Person Act 1864 (OAPA) proscribes, without any exception, the procurement of an abortion as well as any attempt to procure or otherwise assist with the procurement of an abortion or “miscarriage”. A major symbolic effect of laws that criminalize abortion is the institutionalization of state control over women’s reproductive health, and autonomy. In this sense, these laws implicitly treat women’s wombs as being “state-owned”.

At present, the “savings law clause”, which is contained in section 13(7) of the Charter of Fundamental Rights and Freedoms 2011 would effectively prevent a litigant from successfully arguing before the Supreme Court of Jamaica that the sections 72 and 73 of the OAPA violate any constitutionally guaranteed right. The continued retention of laws criminalizing abortion undermines women’s enjoyment of the right to a dignified life. Significantly, the Inter-American Court of Human Rights the Inter-American Court on Human Rights has identified the right to a dignified life as a fundamental dimension of the right to life, the realization of which includes ‘not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he [or she] will not be prevented from having access to the conditions that guarantee a dignified existence’ (‘Street Children’ (Villagran-Morales et al) v Guatemala Judgment of November 19, 1999 (Merits), paragraph 144).

Depriving women of the ability to freely control their reproductive autonomy and decide whether, when and under what circumstances they can terminate a pregnancy unjustifiably limits their right to “make choices that [they] think are best for their life”, and access “the conditions that guarantee a dignified existence”. This is particularly true for poor women who often have no choice but to seek out unsafe, and sometimes fatal, backdoor abortions in unsanitary conditions. It is time for our laws to respect and affirm women’s fundamental right to make the choices they deem best for their lives, especially those regarding their reproductive autonomy.