Drawing lessons from June Medical Services provides the African human rights system with an opportunity not to affirm what it has in common with the U.S., but rather to uphold its own approach and articulate the jurisprudence that sets it apart.
The U.S. regulates abortion primarily through its Supreme Court using jurisprudence which frames abortion as a right implied in the constitutional right to privacy.
On the other side of the comparison, the African human rights system frames abortion as a human right that transcends national borders in the African region. By “human rights system,” I am referring to the regional system founded under the African Charter on Human and Peoples’ Rights (the African Charter) and its supplementary treaties, especially the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol).
More than just framing abortion as a human right, as does article 14(2)(c) of the Maputo Protocol, the African system has tapped into global soft laws, including the norms developed by the International Conference on Population and Development, the Beijing Platform of Action, the World Health Organization, and United Nations treaty-monitoring-bodies to conceive abortion as a reproductive health right. This normative diffusion is apparent from the broader provisions of article 14 of the Maputo Protocol and the interpretive guidance on Protocol’s abortion provisions issued by the African Commission on Human and Peoples’ Rights in General Comment No. 2 (2014).
When conceived as a reproductive health right, the right to safe abortion is not just a duty of restraint, as U.S. jurisprudence implies. It is also a socioeconomic right which imposes a positive obligation on the state to facilitate its fulfillment, including rendering services accessible in the sense intended by General Comment 14 of the Committee on Economic, Social and Cultural Rights.
Perhaps what is remarkable about June Medical Services from the perspective of the African human rights system is not so much that the majority of the U.S. Supreme Court found that the restrictions imposed on providers of safe abortion services by Louisiana’s Act 620 were unnecessary and had the effect of imposing an undue burden on women’s constitutional right to abortion. Rather, it is that four out of the nine justices demurred.
For the African human rights system, June Medical Services serves to facilitate the divergent rather than convergent aims of comparativism. It is a lesson for affirming differences with the U.S.
The U.S. Supreme Court did not have to squarely consider gendered structural inequality that emanates from the historical criminalization of abortion. June Medical Services does not make gender a category of judicial analysis, as would have been mandated under the Maputo Protocol especially. The Protocol is organized around the goals of achieving inclusive equality and eliminating unfair discrimination. Act 620 and its effects would have been found by treaty organs of the African Charter to violate the right to equality and non-discrimination of women because of their exclusionary effects.
Under the Maputo Protocol, the right to abortion is posited as reproductive health right correlative to the duty of the State to ensure the right to health of women. States Parties are required to adopt all necessary measures, including budgetary resources to ensure the full and effective implementation of the rights guaranteed by the Protocol. In discharging their obligations, States Parties must ensure provision of adequate, affordable, and accessible health services. Act 620 manifestly fails the “accessibility” requirement.
Ultimately, the African human rights system envisages a design and implementation of abortion law that is responsive to the imperatives of inclusive equality, including gender equality.
As part of inclusive equality, there must also be accessibility of services in a manner that is analogous to the notion of accessibility under General Comment 14 of the Committee on Economic, Social and Cultural Rights and General Recommendation 24 of the CEDAW Committee.
The African system envisions a domestic abortion regime that is sensitive not just to women as women, but also to the most vulnerable women, such as those who live in locations where the geographical distribution of public services, including health services, adversely and disproportionately impacts some women, such the poor and those who live in rural areas.
In all these respects, the African human rights system signals an interpretive method quite different from the jurisprudence of the U.S. Supreme Court, which has historically sought to keep the language of human rights at arm’s length and treated the right to abortion as, foremost, imposing a correlative duty of restraint.
Charles Ngwena is a Professor at the Centre for Human Rights at the University of Pretoria.