In many Commonwealth Caribbean countries, the state dictates when and in what circumstances a woman can have an abortion, if at all. To be sure, procuring or facilitating the procurement of an abortion remains criminalized without exception in a number of Commonwealth Caribbean countries, including Jamaica. While section 149 (2) (a) and (b) of Saint Vincent and the Grenadines’ Criminal Code provide exceptions to the offence of procuring an abortion, the symbolic effect of laws criminalizing abortion is the institutionalization of state control over women’s reproductive health, and autonomy.
The exceptions outlined in SVG’s Criminal Code are arguably of little use to poor women who often face barriers in accessing decent healthcare–let alone being seen by qualified medical practitioners. Moreover, even where access to such medical practitioners is possible and ultimately facilitated, the exceptions introduce a significant and potentially harmful element of subjectivity since the decision whether either exception should apply is left solely to medical practitioners who may have their own subjective biases and preconceived notions about the morality of abortion.
Anti-abortion laws therefore have the practical effect of undermining women’s reproductive agency and implicitly treat women’s wombs as being “state-owned”. This targeted and unrelenting glare of the state into women’s reproductive lives is a manifestation of gender-based discrimination against women since men are not similarly fettered in the exercise of their reproductive agency and rights. In the case of Jamaica, although the necessity of excising the prohibitive sections 72 and 73 of the Offences Against the Persons Act which categorically proscribe abortion is clear, their constitutionality is effectively beyond reproach pending legislative intervention. Indeed, the “savings law clause” contained in section 13(7) of the Charter of Fundamental Rights and Freedoms 2011 immunize sections 72 and 73 of the Offences Against the Person Act from constitutional scrutiny by a court.
The continued retention of laws criminalizing abortion certainly undermines women’s enjoyment of the right to a dignified life. This involves being able to make decisions that they deem to be best for their lives without arbitrary interference. The right to a dignified life has been identified by the Inter-American Court of Human Rights as a fundamental dimension of the right to life, the realization of which was said to encapsulate ‘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). Although opponents of abortion often argue that abortion it is morally wrong and undermines the sanctity of life principle, this letter insists that from a legal standpoint criminalizing abortion violates women’s fundamental human rights, especially their right to a dignified life, and also undermines their reproductive autonomy. By refusing to acknowledge women’s reproductive autonomy and bodily integrity, laws criminalizing abortion inflict significant harm, particularly on poor women, thereby perpetuating as well as entrenching gender inequality.
Ultimately, 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 undermines their right to a dignified life and also limits their access to “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 decisions about their bodies, especially those concerning their reproductive rights.
Amanda Janell DeAmor Quest is an Attorney-at-Law. Feedback may be sent to [email protected].
