Abortion

AFRICA

In a victorious decision by the High Court of Kenya in PAK and Salim Mohammed v. Attorney General et al., a case brought by the Center for Reproductive Rights and the Reproductive Health Network Kenya (RHNK) in 2020 against government officials in the town of Malindi and the county of Kilifi, affirmed that abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and health care providers for seeking or offering abortion services are illegal. The Court also directed the Kenyan parliament to enact an abortion law and public policy framework that aligns with the Constitution.

The Court’s Ruling Affirmed That :

• Abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and health care providers seeking or offering such services is illegal.
• Protecting access to abortion impacts vital Constitutional values, including dignity, autonomy, equality, and bodily integrity.
• Criminalizing abortion under the penal code without Constitutional statutory framework is an impairment to the enjoyment of women’s reproductive rights.

‍

CANADA

R v Morgentaler, [1988] 1 SCR 30 the Supreme Court of Canada held that the abortion provision in the Criminal Code was unconstitutional because it violated women's rights under section 7 of the Canadian Charter of Rights and Freedoms to the security of the person. Since this ruling, there have been no criminal laws regulating abortion in Canada.

‍

POLAND

Tysiąc v. Poland, the European Court of Human Rights in 2007 decided on the case of a pregnant woman from Poland. She was diagnosed with a severe eye disease, tried to get an abortion to avoid an escalation of her disease. Her requests were rejected by several medical doctors, and she underwent labour of her third child. Her condition later deteriorated, and she sued one of the doctors. Her criminal lawsuits were rejected in Poland and the case was appealed to the European Court of Human Rights, which accepted one part of the complaint, and the plaintiff was awarded damages.

‍

ANGOLA

Abortion in Angola is only legal. The abortion should save the woman's life or health and in case of rape or foetal impairments. Any abortion performed under different conditions subjects the woman and the person who performs the procedure to up to five years in prison. If the woman dies as a result of the abortion or if the practitioner performs abortions on a routine basis, the criminal charges are increased.

‍

ARGENTINA

In Argentina, the catholic court has expressed its firm opposition to the Supreme Court's decision. “The Church asserts the belief that there is no justification for the termination of an innocent life, even when the life is the result of a rape!”

The Supreme Court of Argentina rendered a decision in the case of an abortion performed on a 15-year-old adolescent, who became pregnant after being abused by her stepfather. [the petitioner] s. /Medida Autosatisfactiva). In 2010, the teenager terminated the pregnancy without criminal sanction under a ruling of a Supreme Court of the Province of Chubut. The National Supreme Court has now confirmed the Provincial Supreme Court Decision not to apply criminal liability for abortions performed in cases of rape.

‍

AUSTRALIA

• R v Davidson: also known (particularly among medical practitioners) as the Menhennitt ruling, was a significant ruling delivered in the Supreme Court of Victoria on 26 May 1969. It concerned the legality of abortion in the Australian state of Victoria. The ruling was not the end of the case, but rather answered certain questions of law about the admissibility of evidence, so as to allow the trial to proceed. In the ruling, Justice Menhennitt ruled that abortion might be lawful if necessary to protect the physical or mental health of the woman, provided that the danger involved in the abortion did not outweigh the danger which the abortion was designed to prevent. It was the first ruling on the legality of abortion in any part of Australia. The principles put forward by Justice Menhennitt have since been drawn upon in other parts of the country.
• R v Wald: This important case also involved an unsuccessful prosecution of five people under the New South Wales provisions that make unlawful abortion a crime. The accused were a doctor and an anaesthetist who performed abortions at the Heatherbrae abortion clinic in Bondi, an orderly at the clinic, the owner of the clinic premises, and a doctor who referred patients to the clinic. The defendants in this case were prosecuted for unlawfully using an instrument with intent to procure the miscarriage of a woman contrary to the sections of the law, with conspiring to commit such an offence, and with aiding and abetting the commission of such an offence.
• R. R. v Poland: The European Court of Human Rights ruled that Poland’s failure to ensure the applicant’s timely access to prenatal diagnostic examinations and information, which would have enabled her to decide whether to seek a legal abortion or not, violated her rights under the European Convention on Human Rights to freedom from inhuman and degrading treatment and to respect for her private life. In this case, it concerned Poland’s failure to guarantee R.R.’s access to prenatal diagnostic examinations and information, which would have enabled her to decide whether to seek a legal abortion. In 2004, R.R. filed an application to the European Court of Human Rights alleging violations of several rights guaranteed by the European Convention on Human Rights.