In Jamaica, the subject matter of abortion is as controversial, divisive and “touchy” as it is enigmatic. It is all of the above and more because it evokes emotions that many of us do not even understand. Why does the thought of a woman being able to do with HER body what she chooses, even if that means terminating a pregnancy she does not wish to carry to term for reasons that are personal to her, make people so uncomfortable—especially those who are themselves incapable of even getting pregnant much less carrying a pregnancy to term? The answer to that question has befuddled, and continues to befuddle, many including myself. However, what I do know is that at the heart of it all is the desire to police (and control) wombs (even) to death if that what it comes to, and that is something that I will never support.
In Jamaica, procuring, attempting to procure, or otherwise assisting with the procurement of an abortion or “miscarriage” is categorically criminalized by sections 72 and 73 of the Offences Against the Person Act 1864. The prescribed penalties range from life imprisonment to imprisonment for three years. There are no statutory (as distinctly opposed to common law) exceptions to criminalization so that strictly-speaking abortion is (on paper) illegal regardless of why it was done or the unique set of circumstances that may have even necessitated it being done/induced (i.e. rape, physical incapacity, mental incapacity, etc.). The subject of decriminalization was first raised in the Jamaican Parliament by MP Juliet Cuthbert-Flynn in 2019 when she tabled a private members motion that sought to initiate conversation, both within and outside the halls of power, about reforming Jamaica’s antiquated abortion law. In December of 2020, Argentina’s National Congress passed a bill legalizing abortion up to the 14th week of pregnancy. At the time, Thirty-eight (38) legislators voted in favour of the bill, twenty-nine (29) voted against the bill, and one (1) legislator abstained from voting. Before its passage, Argentine law generally permitted abortion only in cases of rape or where carrying the pregnancy to full term would place the mother’s health at risk. Following that historic moment in Argentina, Minister Cuthbert Flynn expressed in 2021 an intention to “reintroduce the conscience vote on the issue [of abortion] in Parliament and move forward.” Despite her audacious stance and expressed desire to move the conversation around decriminalization forward, Jamaica has sadly once again come to an impasse regarding legislative movements to facilitate the decriminalization of abortion.
Debates around decriminalizing abortion have always been highly contentious as vastly divergent perspectives—namely the pro-choice and pro-life perspectives--compete for dominance of public discourse and imagination. The pro-choice perspective advances a vision of liberalism that emphasizes the pre-eminence of a woman’s human rights to dignity, liberty, and reproductive autonomy. Its central premise is that absent a legitimate state objective that is “demonstrably justified in a free and democratic society,” a secular state should not legislate or attempt to legislate morality in a manner that repressively undermines or otherwise constrains the full enjoyment of basic human liberties. By contrast, the pro-life perspective focuses on the “life of the unborn” (and rather curiously not the quality of life that will or is likely to be enjoyed by the child after birth), and contends that abortion runs afoul of basic biblical tenets because it is tantamount to murder. Nevertheless, credible empirical research conducted over the years have concluded that categorically criminalizing abortion does not prevent or reduce the incidence of abortion. Instead, the research indicates that the categorical criminalization of abortion compels recourse to clandestine or “backstreet abortions”—usually by economically disadvantaged women. Moreover, these “backstreet abortions” are invariably performed in filthy, haphazard, and unsanitary conditions, giving rise to severe, and even fatal, reproductive and other health complications. This no doubt comes at an astronomical economic cost to taxpayers, given the expenses associated with treating complications arising from botched abortions that are borne by an already overburdened public health care sector. According to a recent report launched by the Caribbean Policy Research Institute (CAPRI) titled “Coming To Terms: The Social Costs of Unequal Access to Safe Abortions”, every year $500 million is spent treating complications in the developing world, “where nearly all unsafe abortions occur” (CAPRI 2021, page 3).
Within the corridors of power, Minister Cuthbert Flynn currently enjoys support from fellow Parliamentarian and State Minister, Alando Terrelonge, who has previously lobbied for the abolition of “...our antiquated abortion law”. On the other side of the parliamentary aisle, Opposition Spokesperson on Health, Dr. Morais Guy, who is a medical practitioner, has indicated that he would support a conscience vote to legalize abortion given the “...potential for complications when [there is] the illegal practice of abortion” (Ricardo Brooks, ‘Parliamentary Support Growing for Push to Legalise Abortion in Jamaica’ (Nationwide News, January 2021): <Parliamentary Support Growing for Push to Legalise Abortion in Jamaica - Nationwide 90FM (nationwideradiojm.com)>).
My own view is that abortion and by extension access to abortive services ought to be decriminalized as a matter of urgency. Quite apart from libertarian justifications for decriminalization, no faction of the society, however powerful and influential they may be, should get to dictate how and on what terms reproductive autonomy should be enjoyed, particularly in circumstances where they do not have the capacity to reproduce in the first place. I do believe in the necessity and importance of family planning and what I call reproductive responsibility, particularly for the sake of children who deserve the best of and from their caregivers materially, emotionally and otherwise. But I do also believe that no one should be deprived of the power to choose when and on what terms to found a family. Based on what I have seen when that power to choose is taken away from someone, and they bring children into the world that they very obviously neither wanted nor have any desire to care for, the persons who almost invariably suffer the most are children who has the sheer misfortune of being born in circumstances where they simply were not wanted and are resented, ill-treated and even neglected for that reason. No one should be forced into parenthood before they are ready. No one should bring children into this already cruel world to suffer because they feel they have no other choice. No one should have to choose between potential imprisonment or possibly health complications and even death (in the case of those who can only afford “backstreet abortions”) and doing what they believe is best based on where they are mentally, emotionally, and financially in life.
Where women are raped and become pregnant as a result of that unforgivable act, there is even more of a moral imperative to make abortion and abortive services legal and accessible. Common sense says that no one should be forced to carry a pregnancy to term born of such a horrific and traumatic violation of personhood. It should be recalled that both prior to (at the time of the middle passage) and throughout the period of enslavement, African slave women would often commit infanticide as an act of rebellion and out of a desire to save their unborn children from the sheer misfortune of living a life in miserable slavery (See generally Tavlan Lili, “The Infamous Rosalie: Infanticide as Female Slave Resistance” (2022) Historical Perspectives: Santa Clara University Undergraduate Journal of History, Series II: Vol 27, Article 10). It is likely that at the heart of their decision was their awareness that they could not provide for their children the life that they truly deserved—with all the love, care and stability (emotional, mental and material) that every child needs to thrive and be truly happy in life. I am yet to see any explicit, valid and legitimate denouncement or condemnation of these seemingly emotionless (but actually quite logical) acts of rebellion against that awful institution of slavery.
It is so unfortunate that due to strong evangelical sentiments, among other things, the political directorate seem to be hesitant and/or unwilling to make abortion legal since to do so would possibly cost them the popular vote influenced as it is by the majoritarian position which seems to be supportive of the continued criminalization of. Until the decision-making process guiding the specificities of decriminalization is properly divorced from subjective moral justifications for the continued criminalization of abortion, those women who are driven underground to procure botched abortion will continue to suffer; those children who are birthed in circumstances of abject poverty, abusive familial relations, and overall toxicity will continue to suffer only to be seen as burdens by the very systems and people who effectively insisted on their entry into this world through the continued criminalization of abortion. It is sincerely hoped that one day the leaders of this nation will come to their senses and place the power of reproductive choice into the hands of women, and particularly poor women who have assessed their own circumstances and determined that it would be in no one’s best interests (and least of all the unborn child) for them to carry their pregnancy to term. The time is ripe for the prohibitive sections of the Offences Against the Person Act to be properly excised and for a more liberal “civil law’ to be introduced in keeping with the recommendation of the Abortion Policy Group as proposed in 2007 so that the criminal law can no longer police wombs to death.
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