The news that the American Supreme Court has overruled its almost 50-year decision which upheld the constitutional right to abortion, has been nothing short of cataclysmic – at least in that jurisdiction. By a split decision, the majority held that abortion is a matter to be decided by the States, and the voters in those States – not by the Supreme Court, as it did in Roe v Wade. In the words of Justice Alito “the Constitution does not confer a right to abortion”.
Abortion in Nigeria
According to Professor Friday Okonofua of the Depart- ment of Obstetrics and Gynaecology of the University of Benin in the South of Nigeria (in “the conversation”, theconversation.com) ‘abortion’ refers to “two types of pregnancies that end before 20 weeks, which is now regarded as the age of viability of a pregnancy . . . spontaneous abortion (which) occurs without an intention by the woman to stop the pregnancy, (while) induced abortion is the deliberate termination of a pregnancy because it is unwanted”. He further opines that “the incidence of induced abortion is difficult to measure, because (such) abortions are restricted by law”.
However, the Federal Ministry of Health “estimates that in 2012, there were 1,250,000 induced abortions in Nigeria, equivalent to a rate of 33 abortions per 1000 women aged 15 – 49. Over 80% of induced abortions, are done by doctors in private settings. The rest are either self-induced, or performed by other health personnel and quacks. These terminations are done for social reasons. Data on legal terminations in Nigeria are lacking, but the worsening trend and the complications that follow induced abortions indicate a lack of skill and appropriate technology for the safe termination of pregnancy” (National Guidelines on Safe Termina- tion of Pregnancy for Legal Indications, Federal Ministry of Health, page 9).
Abortion Under Nigerian Law
The two broad codes of criminal law in force in Nigeria – the Penal Code and the Criminal Code (applicable in the 19 Northern and 16th Southern States, respectively) – criminalise abortion, unless it is done to save the life of a would-be mother. The punishment varies from 7 years to 14 years for the mother-to-be and the person (if any), who performed the procedure. See Sections 232 – 234 of the Penal Code, Sections 228 – 230 and 297 of the Criminal Code and Section 38 of the Violence Against Persons Prohibition Act, 2015. They provide as follows, respectively:
The Criminal Code
Section 228: Attempts to procure abortion – Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.
Section 229: Attempt to procure own miscarriage – Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her is guilty of a felony and is liable to imprisonment for seven years.
Section 230: Supplying drugs or instruments to procure abortion – Any person who unlawfully supplies to or procures for any person anything whatsoever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child; is guilty of a felony and is liable to imprisonment for three years.
Section 297: Surgical operations – A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.
The Penal Code
Section 232: Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.
Section 233: Whoever with intent to cause the miscarriage of a woman whether with child or not does any act which causes the death of such woman, shall be punished –
a) with imprisonment for a term which may extend to fourteen years and shall also be liable to fine; and
b) if the act is done without the consent of the woman, with imprisonment for life or for any less term and shall also be liable to fine. Violence Against Persons Prohibition Act 2015 Section 38: Every victim is entitled to receive the necessary materials, comprehensive medical, psychological, social and legal assistance through governmental agencies and/or non-governmental organisations and victims are entitled to be informed of the availability of legal, health, social services and other assistance.
The Federal Government – through the Federal Ministry of Health – has laid out the conditions for undertaking induced abortion safely. This is contained in the National Guidelines on Safe Termination of Pregnancy for Legal Indications published in 2018. It’s objective, is to minimise the incidence of induced abortions by non-professionals, and to identify pregnancies which put women’s health or lives at risk. It also spells out options for ethical and safe medical management of such women globally.
According to the World Health Organisation, ‘unsafe abortion’ is the “termination of pregnancy done by persons lacking the necessary skills, or in an environment that does not conform to minimal medical standards or both”.
Both the United Nations and the World Health Organisation, recognise a woman’s right to choose to abort her pregnancy. This is coupled with her right of access to family planning, safe abortion and post-abortion care. See Goal No.3 of the United Nations Sustainable Development Goals (“Good Health and Well-being”) which targets “universal access to sexual and reproductive health-care services, including for family planning, information and education”, amongst others.
Status of State Laws and Policies on Abortion in Nigeria
The recent unveiling by the Lagos State Govern- ment of a policy document tilted“Lagos State Guidelines on Safe Termination of Pregnancy for Legal Indications” apparently aims to achieve the same objectives as the national one authored by the Federal Ministry of Health referred to above – albeit at a State-level.
This intervention has, however, proved to be controversial, as it was greeted with protests that it sought to legalise abortion.
Beyond that, I believe that the larger question is whether the aforesaid pre-existing Federal Policy document, as well as the National Health Act, 2014 have not covered the legal field of abortion in Nigeria. If, that is the case (as I believe it is), it is clear that, not only the Lagos Policy instrument, but, also the relevant State laws dealing with abortion (i.e., the Penal Code and the Criminal Code as aforesaid), might have become otiose – if not outrightly ultra vires and invalid.
This is because, even though they were initially well within the legislative competence of the various State legislatures, however, by virtue of the combined provisions of Sections 4(3) & 17(1) and Items 60 and 68 of the Exclusive Legislative List as well as Paragraph 2(a) of Part III of the 2nd Schedule to the 1999 Constitution, the National Assembly and – (by virtue of the National Health Act, 2014), the Federal Ministry of Health – now possess the exclusive (albeit concurrent) authority to regulate abortions across Nigeria – including Lagos State.
Far from having a direct (or, indeed, any) bearing on the Nigerian legal framework for abortions, the overruling of Roe v Wade by the US Supreme Court only goes so far, that is, it has no extra-territorial impact here – either legal or otherwise. Unfortunately, this appears to have been lost on the Lagos State Government, as the timing of its new Policy Document on abortion appears to have been informed or inspired by that decision.