Kenya’s Constitutional Court issues a landmark ruling on access to safe abortion in a case against Ministry of Health

Yesterday afternoon, the Center for Reproductive Rights won a landmark case challenging the government’s withdrawal of “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya” (Standards & Guidelines). The Center filed the case on behalf of an adolescent (JMM)—who died last year after suffering from complications that resulted from an unsafe abortion—as well as the Federation of Women Lawyers (FIDA) Kenya and two community human rights advocates. The case was presided over by a five-judge bench at the Nairobi High Court.   

In this ground breaking decision, the Court found that the Director of Medical Services and the Ministry of Health had violated the rights of Kenyan women and girls by arbitrarily withdrawing the guidelines, thereby creating uncertainty as to the status of legal abortion and discouraging medical providers from performing abortions for fear of criminal prosecution. It provided a comprehensive ruling which:

  • Declared that women and girls have the right to the highest attainable standard of health—which includes its broadest interpretation, to include mental and social well-being as well as physical—right to non-discrimination, right to life, and other rights.
  • The Court ordered individual reparations of Skh 3 million, or USD $29,600, to JMM’s mother.
  • Declared that the memo violated and threatened the rights of health workers, therefore, the memo and letter were found unlawful, illegal and now void.
  • Stated that abortion is illegal except under conditions of Article 26(4).
  • Declared that abortion is permitted for victims of sexual violence.

Unsafe abortion is one of the main causes of maternal deaths in Kenya. Despite the fact that these deaths are preventable, seven women and girls die from unsafe abortion every day. Women and girls seek unsafe clandestine abortions due to a lack of access to reproductive health information and quality services, lack of clarity on the legal status of abortion, and pervasive cultural stigma.

“This is a landmark ruling and victory for Kenyan women and girls. JMM’s case is a window into the plight of many other women and girls who have no place to turn, and no access to information or reproductive health services. With the implementation of this court order, health providers will be able to offer abortion and post-abortion care services without the fear of being prosecuted. And it is a step in the right direction toward improving maternal health outcomes for our country,” said Evelyne Opondo, Senior Regional Director for Africa for the Center.

According to a study conducted by African Population and Health Research Center (APHRC) and the Ministry of Health, approximately 464,000 women had an abortion in Kenya in 2012. Of those, nearly 120,000 were admitted to public health facilities for severe complications. In a 2018 study, the Ministry of Health and the African Population and Health Research Center also found that the cost of treating complications arising from unsafe abortion in public facilities in Kenya was Ksh 432.7 million, or US $5.1 million. These findings highlight the significant financial burden of unsafe abortion in Kenya.

“I am very pleased with today’s ruling,” said PKM, JMM’s mother. “I know this is what my daughter, JMM, would have wanted to see: that justice is served, and that Kenyan women and girls in need of emergency health services including abortion, regardless of their social economic status, are able to access safe and legal abortion services without fear of being stigmatized.”  

In September 2012, the Ministry of Medical Services published the “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya.” However, In December 2013, the Director of Medical Services withdrew the Standards and Guidelines without explanation, and without the involvement of the stakeholders who had participated in its development. The withdrawal was followed by a memo in February 2014 that further stated that there was no need for the training of health workers on safe abortion care or the use of the drug Medabon for medical abortion. The Ministry threatened health providers with dire legal and professional consequences if they participated in any abortion training.  Cumulatively, these actions created confusion among health providers as to when to offer abortion services, including post-abortion care services. The result has been a chilling effect: fearing reprisal, health professionals have opted out of providing services to women and girls even when they fall under the permitted legal grounds for abortion.

In 2015, the Center, representing all the petitioners, filed a case against the Attorney General, Director of Medical Services, and the Ministry of Health. The Petition was challenging the Ministry of Health and urging the High Court to protect women’s health and lives by restoring safe abortion training. Furthermore, the Petition called on the Ministry of Health to reinstate Standards and Guidelines to provide clarity on when and how to provide legal abortion care. 

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