The thought of a woman dying or being forced to carry an unwanted pregnancy because a Government denies her legal access to a safe abortion is deplorable. Yet, it is equally unacceptable for a Government to hide behind what appears to be an acceptable law that in reality does little to guarantee a women's right to choose or to put her health and life first.
On May 20, Nepal's Supreme Court ordered the Nepalese government to enact a comprehensive abortion law to guarantee that women have access to safe and affordable abortion services. Abortion has been legal in Nepal since 1992 when the government introduced an amendment to the National Code to allow a woman to have an abortion within the first 12 weeks of pregnancy, up to 18 weeks if the pregnancy is the result of rape or incest, or at any time if it is believed that the pregnancy will affect her physical and mental health. The amendment represented not only a step towards improving the health of Nepalese women but also what an untenable situation the former law created, with one-fifth of women in prison in Nepal at the time of the amendment incarcerated for having had an illegal abortion.
Since the introduction of the new law, however, numerous barriers have continued to prevent women from accessing safe and legal abortions, the most obvious being the lack of service providers but also a lack of awareness among women that abortion is legal. Familial and religious values have frequently deterred women from seeking an abortion while stigma persisted, heightened by number of women who served prison time under the previous law. The Supreme Court's new decision requires the government to set up a fund to cover the cost of abortion for poor and rural women and invest enough resources to meet the demand for abortion services. The Supreme Court has also instructed the government to raise awareness about legal and safe abortion and take steps to eliminate the stigma surrounding the practice.
The petitioner in the case was Lakshmi Dhikta, a woman from a poor household in the rural western region of Nepal who had been denied an abortion simply because she could not pay the fee for the procedure and was forced to give birth to her sixth child. The case was filed back in 2007 by the Nepalese NGO, Forum for Women, Law, and Development supported by the Center for Reproductive Rights (CRR) in New York. According to the CRR's regional manager and legal adviser for Asia, Melissa Upreti, the decision was not unexpected but rather a reflection of the maturity, sensitivity and progressive attitude of the current court. According to Upreti, the Nepalese Supreme Court has issued a number of gender sensitive decisions over the years, including ordering the government to review the provisions for punishing marital rape, which were considered too lenient. In August 2007, the Court also rejected a writ that challenged the new abortion provisions on the basis that they discriminated against men for allowing a woman to terminate a pregnancy without the husband's consent as well as criminalizing marital rape. Upreti also credits the consistent efforts of activists over the years to sensitize judges about gender equality and human rights, with one of the judges who handled the case having been involved in a CRR training on reproductive rights litigation back in 2006.
In one of my previous posts I have discussed the value of
the Government of Nepal's Interim
Constitution adopted
in January 2007 which explicitly recognizes that "every woman
shall have the right to reproductive health and other reproductive matters"
as a fundamental right. Upreti believes that this recognition
of reproductive rights as fundamental provided a strong legal basis
for the Court to recognize the claims made in this case. This is not
to suggest that the case was an easy win, in light of Nepal's conflict-ridden
history. Upreti also notes that "the case is in large part premised
on a woman's autonomy, a concept that does not exist in the patriarchal
framework that has dominated Nepalese society for centuries."
The decision comes after a recent announcement by the Ministry of Health and Department of Health Services of a plan to bring medical abortion to the primary health-care and community level throughout Nepal, particularly poor, underserved women, especially those living in difficult-to-reach rural communities. The government will train midlevel providers (such as nurse midwives), as well as doctors, to counsel women and provide medical abortion.
There had been a number of efforts over the years by local and international NGOs to raise awareness about the legality of abortion and help address the ingrained fears and shame that were standing between women and safe abortion. Path, for example, have been working to create "dialogue groups" allowing groups of women to have discussions about issue such as unwanted pregnancy, choice, AIDS prevention and gender inequality. Ipas Nepal also began training health-care providers in comprehensive abortion care in 2004, as a result of which, nearly 500 providers, including nurses, have been trained and 74 out of 75 districts have at least one trained provider. However, despite such efforts many poor, rural women still cannot access safe abortion services, making this Supreme Court decision truly monumental.
A significant portion of Nepal's maternal deaths is attributable to unsafe abortion, heightened by persistent poverty, low rates of contraceptive use and a high percentage of deliveries occurring without a skilled birth attendant. With one of the highest maternal mortality rates in Asia, 830 deaths per 100,000 live births in 2005, this Supreme Court decision reflects a much-needed push for the government to account to its people in guaranteeing the right to life and the highest attainable standard of health. Now civil society groups must maintain this momentum and monitor the decision's implementation, working with the government to continue to make access to abortion a reality.
