By Melissa Upreti, Senior Regional Manager and Legal Adviser for Asia
As the U.S. Congress launches one of the most vicious attacks against women’s health in recent history, the Supreme Court of Nepal has officially issued a groundbreaking decision on women’s reproductive rights that turns on its head patriarchal notions of the government’s right to interfere in women’s decisions about their bodies. The ruling unequivocally recognizes a woman’s right to abortion as a crucial component of her reproductive rights that cannot be denied by the government without violating a broad range of her human rights.
For centuries Nepal banned abortion under any circumstance – and did not explicitly permit it even to save the life of a woman. Women were routinely thrown into prison for having abortions and many more died in the process. Unsafe abortion was widespread with women desperately seeking to end their pregnancies in order to protect their health, families, and livelihoods. The law and the criminal justice system completely ignored the circumstances surrounding a woman’s pregnancy and decision to have abortion. The ban opened the door for law enforcement officials to arbitrarily classify many abortion cases as “infanticide,” or the murder of a child following birth—a crime that carried heavy criminal penalties. And the women typically targeted were poor. It wasn’t until 2002 that the King of Nepal signed into law a bill permitting abortion under broad grounds, marking the beginning of a number of dramatic steps towards guaranteeing women’s access to safe reproductive health services in the country.
Nepal’s experience, and that of other countries with restrictive abortion laws, clearly illustrate that making abortion illegal does not stop women from seeking abortion, it only results in women endangering their lives to end their pregnancies, particularly those with fewer resources. Indeed, prior to the 1973 U.S. Supreme Court decision Roe v. Wade, illegal abortion was common in the U.S. Yet 38 years later, federal lawmakers are engaged in an aggressive campaign designed to severely limit women’s access to abortion by making it less affordable and shutting down abortion providers.
Nepal, on the other hand, has learned its lesson and ironically, is being inspired by Roe. Until just a few years ago, the South Asian country was officially the world’s only Hindu kingdom and today, it is a secular state. It is exemplary that in such a short time, people have come to understand the importance of separating religion from governance. As a result, the highest legal authority in the country has issued a bold decision that explicitly recognizes a woman as the master of her own body and the government’s obligation to guarantee safe and affordable access to abortion services.
Here are highlights from the decision:
- It states that just as the law does not force a man to use his body in certain ways, as a matter of equality, a woman cannot be forced to allow her body be used in ways that she does not want.
- It affirms the importance of making sure that women are not unjustly denied access to legal abortion services because of the cost and makes it obligatory for the government to provide free services to women who cannot pay. Access to abortion services, it notes, is a matter of women’s rights and social justice.
- It establishes that the fetus cannot be prioritized over the protection of a woman’s physical and mental health and well-being as, without the mother, there would be no fetus. Pointing to numerous scenarios that would result from legally recognizing the fetus as a human life, the court says it would not be practical to force women into such risky and dangerous situations.
- The decision also briefly mentions Roe noting that the US Supreme Court does not recognize the fetus as a human life.
The court’s ruling revolved around a case involving a mother of five children who decided to have an abortion when she became pregnant for the sixth time. She was extremely poor and did not have the money or resources to even afford contraception. She could barely afford to feed her children with her husband’s meager income. She herself was in very poor health. So, when she became pregnant again, she and her husband went to the nearest hospital to obtain a legal abortion. But she was unable to do so only because she could not pay for it. The doctors asked her for 1130 rupees (approximately $15) which she did not have. As a result, she was forced to carry the pregnancy to term and become a mother for the sixth time.
Hers is not the story of just one woman, but of many women across Nepal and across the world. As such, this is the kind of legal decision that women are in need of everywhere – a decision that wholly recognizes their dignity and human rights.