Lessons from Texas abortion debate

Last week, a fifth United States (US) Circuit Cout of Appeals reversed a ruling from a lower federal court that temporarily blocked the State of Texas from enforcing its ban on abortions carried out six weeks into a pregnancy.

The decision has polarised opinion in that country, with pro-choice activists on one hand protesting that the law poses unnecessary restrictions in women, while hard-line Texans on the other, hailed the ruling for preserving their perceived moral values.

 Malawi went through a similar phase last year when Parliament was expected to table the Termination of Pregnancy Bill of 2019. The pro-choice and pro-life groups could not reach a consensus.

The problem with the abortion debate is that it is framed around two central divergent themes and the right to self-determination.

On one hand, we have the pro-choice group, who driven by feminist sentiment, argues that the woman should, in the spirit of self-determination, have exclusive rights and independence over what she does with her body, including when and how she wants to have children.

On the other, we have the pro-life group who want the bill to be thrown out because “legalising abortion” would be against the moral and religious principles that form the basis of Malawian society.

Because of using different frames of analysis in the abortion debate, there has been little consensus on the way forward. Both sides have dug in their heels and left no room for a compromise that safeguards the interests of the conflicting parties.

Meanwhile, the country is still stuck in limbo with Parliament yet to pass the bill. And on the current evidence, there is no reason to believe that Parliament will pass this bill. This is where the Texas ruling comes in.

However, it is important to note that the discussions from both sides did not add any substantive value in the debate, rather; they diverted attention from the core issues and focused on trivial matters that were not particularly relevant to the Termination of Pregnancy Act.

To begin with, it would be counterintuitive to base constitutional law on religion when Malawi’s constitution is secular and does not place one religion over another.

Malawian law is formulated in a way that secures the legitimate interests of each social group, regardless of political or religious affiliation. That is the basis on which tolerance, and by extension, social cohesion and harmony are upheld in contemporary societies.

Equally, it would be unreasonable to discard the bill or enact the bill on feminist sentiment alone. It was surprising when people spoke of a perceived “feminist takeover” when the proposed bill actually prohibits abortion on demand.

The positive thing about the Texas ruling is that it provides a reasonable middle ground for approaching the debate on abortion. It prescribes the time when life begins. This will be critical in the debate in the future.

It is important to note that the abortion debate is a legal argument regardless of the reluctance of both the pro-life and pro-choice groups to acknowledge that. If Malawi is to amend the constitution, then it has to be within the principles of its law.

Unfortunately, both sides of the dispute seem to present arguments that seem to circumvent the law, rather than uphold it.

What the pro-choice and pro-life groups conveniently fail to acknowledge is that the rights and freedoms, including to the rights to association and self-determination, are prescribed by law and can be limited, or, where necessary, ignored.

From a layman’s perspective, Parliament would do well to focus its discussion on whether the proposed bill can respect the rights of the mother and unborn child in a manner that is consistent with the Constitution, the supreme law of the land.

The central question here, from a legal point of view, is on when it is lawfully permissible to take a life. Note that Section 45 of the Malawi Constitution and several other international statutes list the right to life as a non-derogable right.

The emphasis on the abortion debate should be on life. Unfortunately, deciding whose life is more important between the life of the mother or an unborn child is easier said than done.

If the law can prescribe when life starts, it would provide a basis for determining when the State can reasonably restrict abortion on demand if that is the direction Malawians want to go in the future.