Share on Social Media

< Back to Insights

The Fragility of Judicially Crafted Constitutional Protection of Abortion Rights

“[A] T our foundation, ‘at the very bottom,’ there is clearly something that will not learn, a brink wall of spiritual fatum, of predetermined decisions and answers to selected, predetermined questions.  In any cardinal problem, an immutable ‘that is me’ speaks up.”

            Friedrich Nietzsche Beyond Good and Evil, sec. 231.

“…. It is up to the feminist movement to give priority to campaigning for the right to abortion, not only because clandestine abortion is one of the leading causes of maternal mortality but also because decriminalization of abortion is an important step towards making women full members of the community.  In the campaign for the legalisation of abortion, statistics are vital in the defence of women’s lives and health.  But we must not lose sight the most important issue at stake: the autonomy of women to become aware, responsible and capable of making decisions about our own bodies, sexuality and lives.  Our aim is to affirm the morality of women and refuse the protection of the church and state.”

Carmen Barroso, Speech to the national Seminar on Maternal health and Mortality in Brazil, quoted in Sussana Rance “Safe Motherhood, Unsafe Abortion: A Reflection on Impact Discourse” Reproductive Health Matters, No. 9, May 1997.

The greatest destroyer of peace today is abortion, because Jesus said, If your receive a little child, you receive me[1].  So every abortion is the denial of receiving Jesus, the neglect of receiving Jesus.”

            Mother Theresa, talk at the national Prayer Breakfast with President Clinton *[2]



Everyone knows about Roe v Wade.[3] It is perhaps one of the most famous or notorious decision of the United States Supreme Court. It marked the culmination of the attempts to secure legal protection of a woman’s right to choose whether or not to carry a foetus to term by topping earlier legislative victories which the women’s movement had scored in State legislatures[4]. These earlier legislative victories which started some three years back in 1970 when New York repealed its statutes criminalising abortion. Roe v Wade decided in 1973 marked the culmination of this effort for not only were the Texas statutes in issue struck down, but all American women now had a federal constitutional right to decide whether or not to terminate her pregnancy.[5] To be sure it was not an absolute right[6] as asserted by some feminists, but sufficiently broad to mark a major victory of the kind that would go a long way in mollifying the frustrations caused by the then faltering, and eventual the defeat of the Equal Rights Amendment.[7] Yet, though the women’s movement in the United States, achieved what ought to have been a relatively secure constitutional anchor on which to assert their demands, abortion rights are more vulnerable or virtually non-existent as compared with Europe, where for the most part, protection is based on legislation.  It is not uncommon to find pro-choice activists in the United States asking wistfully why they have to keep fighting rearguard battles for rights their European sisters had long secured.

In my talk this morning I will give a very brief and partial in both senses of the word account of the continued assault by conservative forces in the United States on Roe v Wade and try to offer my own views on what we can learn from the American experience. This does not reflect any obsession with the United States experience nor a judgment that its system of government represents that pinnacle of human achievement.[8] It is merely an acknowledgment of the fact when it comes to judge-led constitutionalism, they have been at it for longer. As was well put by Mr. Justice Estey of the Canadian Supreme Court, “The courts in the United States have had more than two hundred years experience at this task and it is of more than passing interest to those concerned with these new developments in Canada to study the experience of the United States Courts.”[9] Thereafter I will make some loose remarks about the appropriate framework within which to accommodate the competing claims in the abortion debate when designing the constitutional arrangements by which we wish both we and future generations are to be bound.  Anticipating my conclusion, I will say straight off the bat, as it were, that I believe the so-called zero draft performs poorly in this respect (as well as in most other areas) and ought not to be accepted at all.


It is important to understand something of the context within which opposition to abortion rights has sprung vis-à-vis the United State’s Supreme Court’s own actions i.e. its sometimes controversial position in the national body politic. Though this will be necessarily be incomplete both because my remarks must be short but also because I concentrate almost exclusively on Supreme Court at the expense of all other political actors. The following caveat is therefore important. Despite its own bluster, the Supreme Court did not necessarily play the dominant role and at time was a relatively peripheral actor with a respect to most of the important social and political developments that took place during the period considered.[10]

My partial narrative begins in 1937 at the height of Roosevelt’s clash with the Supreme Court. In response when he perceived as intransigence on part on decrepit conservatives clinging to an obsolete political ideology and thus hampering his agenda for reform proposed the court packing plan.[11] To supporters of judicial supremacy[12], the court-packing plan[13] was an illegitimate assault on the judiciary. What is of immediate interest to us is that change of tune and subsequent change of guard in the Supreme Court. The justices in response to Roosevelt’s onslaught against it, literally turned their tails on almost seventy years consistent jurisprudence of striking down economic legislation under the rubric ‘freedom of contract’ and allowed the government a free hand in such matters as they finally began to uphold new Deal legislation.[14] Soon after this famous ‘switch in time that saved nine,” Roosevelt was able to pack the Court with his appointees, as the old guard exited the scene through retirement that by 1941, the Court consisted exclusively of his appointees.  Though I am not that concerned in this talk with the political branches I must mention here that the Roosevelt’s victory over the conservative forces dominating the Supreme Court had the unexpected backlash of uniting the Conservative Democrats from the South (“the Dixiecrats”) who always resented the Northern liberals, with the pro-business Republicans creating a conservative coalition which effectively killed Roosevelt’s more ambitious and truly significant second new deal[15]

The elevation of Roosevelt’s appointees to the Supreme Court also had another equally significant effect which reflected a split amongst New Deal judges. While they were all agreed that government should have a relatively free hand with respect to ‘economic regulation,’ some, perhaps most, were not willing to be as deferential in matters concerning individual liberties. In their view, the federal judiciary had an important role to play in vindicating individual liberties. From this perspective emerged a curious duality that was best expressed, strangely enough, in a footnote to Justice Stone’s opinion for the court in United States v Carolene Products.[16] After explaining the presumption of constitutionality to be accorded by judges to disputed acts of the legislature, he famously qualified such presumption in the famous footnote number 4:

“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth Amendments.”

The fissures intensified among New Deal judges about the scope judicial review of legislative acts when facing challenges based on the bill of rights with the camp demanding less deferential approach eventually prevailing after the appointment of Earl Warren as Chief Justice.

It is impossible to properly describe the impact of the Warren Court on American Constitutional jurisprudence in a few short sentences. In a very sweeping summary these developments gave rise to what may, following Mark Tushnet[17] be characterized as New Deal-Great Society constitutionalism.

In the course of doing so, the Supreme Court handed down, especially in during its heyday in the 1960s at the time when President Johnson launched his ‘Great Society’ project, the retirement of Justice Frankfurter and the various civil rights movements took hold, a series of remarkable liberal decisions that would engender fiery reactions, later to redound as the right got its act together.

  • We may begin with the decisions in the area of race in particular efforts by the Warren Court, at any rate in the level of rhetoric, to expand the constitutional protection available to African-Americans. The most famous of these being Brown v Board of Education[18] holding that segregation, at least in schools, was constitutionally infirm, admittedly a result that was quickly undermined by Brown (II)[19] showing that least when it came to enforcement, the court would go slow. The Court subsequently in the early sixties moved on the reapportionment where it pronounced the ‘principle’ of one man, one vote as a constitutional guarantee which had to respected in the drawing on congressional and/or local boundaries.[20] It is doubtful whether despite all the heat they generated, these decisions had much practical effect on the lives of blacks. Such changes as did occur came only when the political branches of the Federal government took up the cause.[21] It is also far from evident that though significant, these changes were all they were cracked up to be [22] and integration has a long way to go, if it will ever get there at all.[23] The effect of these decisions was to lay the seeds of alienation among whites from the South who had practiced the most outrageous form of blatant racial discrimination. It was a resentment that would be exploited by Nixon’s Southern strategy and indeed, is still exploited today by the American right.
  • Then there were the communist decisions. The Supreme Court only came to the picture at the time when McCarthyism was certainly on the wane but anti-communist feelings still held sway. Accordingly when the court delivered decisions reversing adverse actions taken against suspected or presumed communists, they were perceived as, or alternatively sold as, pro-communist. In these decisions the court offered some measure of amelioration to those bearing the brunt of anti-communist crusade for example those facing congressional investigation see Sweezy v New Hampshire[24]; Watkins v United States. Such decisions certainly struck a raw nerve within the American polity laying further foundation for resentment which was gleefully picked on and exploited by the right. The Court did back down thus, in the eyes of some commentators saving itself from direct congressional battering,[25] but the foundations of further mistrust had been laid in significant parts of a frightened population.
  • The next category of decisions that really taxed the Supreme Court’s already dwindling reserve of public support are those which developed what was in effect a constitutional federal criminal law procedure. Its decisions included Mallory v United States[26]­- reversal of a rape conviction for failure to comply with a mandatory federal rule requiring an arrested person to be brought before a magistrate without unreasonable delay; Mapp v Ohio[27] – extending the exclusionary rule that evidence obtained in violation of a suspect’s constitutionally protected rights had to be suppressed to state courts; Gideon v Wainwright[28] – indigent’s constitutional right to  state-provided counsel; Escobedo v Illinois[29]– extending right to counsel to actual presence police interrogations in certain circumstances; Miranda v Arizona[30] – police had affirmative duty to ensure that an arrested person was fully aware of her/his rights.[31] A vivid illustration of the unpopularity of this set of opinions is that the Supreme Court not only became an election issue but even those one would expect to defend them, were even more extreme in their denunciation. For example the Democratic candidate in the 1968 presidential election, Wallace sought to outdo Nixon. Professor Friedman usefully refers to a New York Times article in which Wallace launched into vitriolic attacks on the Supreme Court and the Attorney-General for civil rights cases accusing them of ingratiating to “left-wing intellectuals and communist professors who advocate victory for the Vietcong.”[32] The rise in crime rates in the 1960s, reversing a historic trend that saw a drop in crime,[33] only served to exaberate the middle-class’ negative reception of these decisions.[34] Friedman has argued that “the Warren Court may have been undone in the public mind by its final reform effort; expanding protections of criminal suspects.” Though, as he further explains, the Supreme Court did retreat in face of vociferous censure, the damage was already inflicted.
  • At about the same time when it was treading its toes in the hot water of criminal justice reform by ‘siding with the criminals’, the Court also ignited the fire of First Amendment religious clauses jurisprudence. True to form, at any rate for the religious community, they did not hesitate in coming down to the side of the devil by banning school prayer- Engel v Vitale[35] & Abington v Schempp[36]two particularly unpopular decisions that did not exactly win over the public.[37] Ironically while such decisions did not endear the Court to the then emerging evangelical Christian movement, it did provide them with a cause to fight for, a cause they passionately champion to this day- a constitutional amendment to allow (indeed, require) school prayer.
  • Late in the Warren Court and early in the Burger court, a whole new right was carved out from the old cloth of the Fourteenth Amendment (its ‘penumbras’, as Justice Douglas put it), under the banner right to privacy. Richard Posner has described them well, “in a series of decision between 1965 and 1977, the Supreme Court created a constitutional right to sexual autonomy, which is called privacy.”[38] It is with the earlier decisions, prior to Roe v Wade, that I am concerned with both of which involved constitutional challenges to legislative restrictions on contraceptives namely Grisworld v Connecticut[39]upholding such a challenge as an invasion on the right to privacy of married couples and Eisentadt v Baird[40]– extending such protection to unmarried couples. For the sake of completeness, I should mention here the all-so appropriately titled Loving v Virginia[41] which straddles both racial protection jurisprudence and right to privacy. In this case the Supreme Court finally accepted one of the many invitations which had been extended to it and strike down an anti-miscegenation statute.

These sets of decisions as well as others, met various kinds of reactions with some, while reflecting the popular mood in the nation as a whole, in various places, alienated significant portions while other decisions were either almost universally reviled or disapproved of by the majority. Whether they had the immediate effect of creating localised or regional pockets of resistance or seriously eroding public support for the Court generally, cumulatively they all had the long run effect of contributing to the creation and/or growth of a reactionary conservative right wing alliance that would hit back and hit back they did.[42]


In Roe v Wade and its sometimes neglected companion case of Doe v Bolton[43] (notwithstanding the Court’s own injunction that they “are to be read together”), the Supreme Court built on its decisions on the right to privacy. The core of its rationale is pertinently captured in a single paragraph which merits reproduction:

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”[44]

Justice Blackmun made three other holdings which should be underscored. Firstly, declining to uphold the absolute right to abortion that some were asserting, the Court unequivocally rejected the theory upon which a good number of pro-choice advocates subscribe to “in fact, it is not clear to us that the claim asserted that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions.”[45] Following this rejection, the Court created a limited zone of constitutional protection based on the viability of the foetus. Accordingly, during the first trimester, the state could not proscribe abortion[46], though it could regulate the provision of abortion services but only in ways “reasonably related to the health of the mother.”[47] Thereafter, the state had a relatively free hand but if it chooses to ban abortion, exceptions had to be made for the preservation of the life and health of the mother.

The Court demurred on the argument that that the unborn were “persons” entitled to constitutional protection, “in short, the unborn have never been recognized in law as persons in the whole sense,”[48] It followed that it was not permissible that “by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.”[49]

The reaction of the religious right and social conservatives to Roe v Wade was electric. Indeed, even more than the school prayer decisions, Roe v Wade has provided the political glue that binds them. Overturning it, (as well as undermining its practical impact) has become the obsessive goal for such groups. Their campaign has been mounted on several inter-connected fronts:

  • They sought to build on Nixon’s avowed aim to change the face of American law, by appointing suitable conservatives to the bench who would “apply” rather than “make” law. Of course to them, Nixon was not all that successful as it was his nominee who wrote Roe v Wade while the person he appointed Chief Justice joined the majority. These social conservatives are not as careless, for they use the simple litmus test of opposition to Roe v Wade as the sin qua nom as acceptability. They had their greatest success in the twelve-year Reagan-Bush I administrations who effectively installed young, for the most part bright, archconservatives to the Federal bench. This trend was not reversed nor significantly affected by the eight-year Clinton administration as the latter was not only basically a conservative (save on abortion[?]), indifferent to the federal bench except as an opportunity for tokenism, but also the Republicans fought a successful defensive counter-attack in the Senate. The success of the right in the bench is underlined by Judge Laurence Silberman’s boast to the effect that “We have made it.” It is fair to say that even before Bush II, majority of the Federal Courts of Appeals which are in most instances effectively the final courts of appeals for the Supreme Court can only handle so many cases, with the possible exception of the Sixth and Ninth circuits, was dominated by conservative judges beholden to, and beloved of, the religious right.
  • With such changes Roe v Wade was obviously vulnerable as Reagan’s nominees O’Connor, Kennedy and Scalia took their seats on the Supreme Court. Indeed, in the late eighties, the expectation was that it was only a matter of time before Roe v Wade was buried with Justice Blackmun, perceiving its death throes, plaintively moaned the dark clouds ahead and protested that the Court was about to “cast into darkness, the hopes and visions of every woman in the country.”[50] In the event, these grim forebodings did not come to pass. It was saved, though in decimated, though opaque, form, in Planned Parenthood of Southern Pennsylvania v Casey[51] when O’Connor, Kennedy and Souter combined to produce an opinion which retained and reaffirmed the essential holding in Roe v Wade or so the three of them claimed.[52]
  • Simultaneously, the anti-abortionists concentrated on the legislative branch, succeeding in placing ­anti-Roe v Wade legislators in the state and federal government. This was in an effort to ensure that the legislative branch was dominated by so-called pro-life people so as to undermine the practical promise of Roe v Wade by building legislative impediments to availability of abortion. It is a mark of the success of these efforts that outside the East-Coast states and California, abortion has been severely restricted through the use of such legislative devices as oppressive regulation of abortion services providers, mandatory delay requirements targeted at dissuading women seeking abortion; passage of laws granting foetuses the legal attributes of personhood etc. In their most recent report on the subject, the Naral Pro-Choice America, has confirmed that most states in the United States have backed the trend of obstructing access to abortion.[53]
  • And then there is George W. Bush. It is relief to know that most of the women who voted did not vote this man who has been described by the Nobel-prize winning economist, George Akerlof as the worst President in the history of the United States.[54] Certainly from the perspective of progressive politics, this man and his crew are some of the most dangerous men in the world. His policies on reproductive rights are just downright retrograde and harmful:

“Taken cumulatively, these decisions present a startling, worrisome prospect for the future of family planning. Although acknowledged for decades as an effective- and cost-effective public health intervention, the Vatican and anti-abortion groups have successfully attacked family planning by linking it to abortion. As a result, in the short term funding losses, and restrictions have forced cutbacks in services worldwide. In the long run, these conservative initiatives may set back decades of progress in reproductive rights. In promoting an ideologically driven approach to sexual and reproductive health, the recent developments threaten to subvert ethical standards of medical care and the principle of evidence-based policy.”[55]

One of Bush’s first acts as President was the promulgation of the Mexico-City Policy, which outlawed the provision of USAID funds to NGOs’ which perform or actively promote abortion as a method of family planning[56], subsequently in 2003 expanded to include all forms of assistance provided by any component of the State Department.[57] This has had an immediate impact especially in sub-Saharan Africa where most organisations depended heavily on USAID.[58] As they both refused to sign up to the mandate of the Mexico City policy, Family Planning Association of Kenya and Marie Stopes Kenya have had to close down a total of five clinics while those NGOs who could not afford to accept funding losses from USAID, have had to accept not only restrictions on the services they provide, but their participation in public discussion is gagged to suit American conservatives. Further, Bush has since his appointment as President by the conservative judges in the Supreme Court[59] has stopped the United States contributions to UNFA while at same time advocating that the government’s position is that life begins at conception.

  • The most recent success the anti-abortionists have scored at the National Level the enactment of the erroneously termed ‘partial’ birth abortion ban in 2003 under s statute entitled Partial Ban Abortion Ban of 2003. This seems to me to fly in the face of the Supreme Court’s decision in Steinberg v Carhart which struck down narrower partial birth abortions which had been passed by state legislatures. At least three Federal Courts promptly enjoined the enforcement of this act.[60] There are other bills pending before the Congress. While nominally expressed as designed to protect the unborn, they are really targeted at Roe v Wade.

The above examples are illustrative rather than exhaustive.

One of the worst aspects the debate on abortion rights in the United States is just how unproductive it is. Judge Posner’s dissenting opinion when the 7th Circuit Court of Appeals considered one of the so-called partial birth abortion statutes (later on struck down by the Supreme Court) is a fairly accurate assessment of the debate generally:

“The wave of “partial birth” statutes that broke over the nation after the description of the D & X procedure was publicized…does not exhibit the legislative process at its best, whatever one thinks of abortion rights. Whipped up by anti-abortion activists who wanted to dramatize the ugliness of abortion and deter physicians from performing them, the public support for the laws was also based- as is implicit in Judge Manion’s defence of the laws- on sheer ignorance of the medical realities of late term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn’t realize that the only difference between it and the methods of late-term abortions that are conceded all round to be constitutionally privileged is which way the feet fetus’s feet are point. Opposition to the bills that became laws was at first muted not only by ignorance of the character of late-term abortions but also the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can be fairly described as irrational.”[61]

Though the Supreme Court both in 1973 and 1992 sought to settle a woman’s right to choose, it has dismally failed to do so. On contrary, it appears to have inflamed the passions of religious right to such an extent that it seems impossible to imagine that anything other than the internment of Roe v Wade appeasing them.



It would be foolhardy to assert that it was inevitable that intervention by the Supreme Court would necessarily lead to the crisis facing abortion rights in the United States today. In 1987, the Canadian Supreme Court intervened and struck down the Federal Canadian Statute criminalising abortion on much narrower procedural grounds[62] than substantive grounds on which Roe v Wade rested. The majority decisions[63] left a lot of room for the Canadian parliament to intervene and re-introduce a more tightly drawn statute with better procedural safeguards which presumably would pass muster. Though the door was thus left open, the Canadian Parliament has chosen not to walk through it while attempts by a provincial government to sneak in an anti-abortion statute as a health regulation was rebuffed as an unconstitutional intrusion into the legislative powers of the Federal government.[64]

To some extent the inability of Roe v Wade to entrench itself fully into American polity as opposed to say, Brown v Board of Education, is that, unlike the Canadian Supreme Court, the American Supreme Court might have been too ambitious, arrogating to itself the sole power to resolve the issue once and for all. This appears to be the basis of Justice Ruth Bader Ginsburg’s criticism to the effect that it the Supreme Court failed to engage other actors in discussion. Its validity though appears limited for, I very much doubt if Ginsburg seriously believes that outside East-Coast and California, women would have gained abortion rights via legislative reform.

By the way, it is something of an exaggeration to say that Brown has entrenched itself that much for though it is obligatory across the board to accept its correctness, it is not equally obligatory to ensure its practical promise.[65] Thus the Northerners could support Brown without actually changing their habits while Brown II assured Southerners that the Supreme Court did not expect their innocent ‘lily-white’ daughters would not be sharing desks with ‘big, bad black’ boys anytime soon. Indeed, Thurgood Marshall, who argued both cases, is reported to have said that following Brown II  he was “shattered. They gave us nothing and then told us to work for it. I thought I was the dumbest negro in the United States.” By contrast, Roe v Wade sought to deliver practical promise of availability of abortion. Roe sought, as it had to, to do more than appeal to abstract moral aspirations of Americans. That seems to me to be the main difference between the two. It precisely because Roe v Wade sought actual and immediate practical progress that it has generated the heated opposition it did.

Though this analysis is necessarily suggestive, it seems to me in this as well as in other matters, Canada is a lot closer to what I regard as the more mature and healthier attitude of the European with regard to sexuality generally than the United States. When a political culture is polluted by the moral absolutism based on divine right, the possibility of developing a meaningful consensus on the issue of reproductive rights disappears. Thus what is distinctive about the United States, is the religious right who wield enviable political power since their pitched their tent in the Republican party and captured a significant, may be the significant part, of that party’s platform.

In Kenya now, an ill, cold, wind of extreme religious conservatism is blowing from the United States. The previous ‘progressive’ (sic) veneer of opposition to Moi regime which masked the intolerance of the Christian leaders, and their attitude of ‘my way or the highway’ which they share with their brethren of the American religious right, has now been exposed to be mirage it was as they sought in the Bomas process to constitutionalise their religious beliefs, attempts which included that outrageous effort to include a clause to the effect that Kenya was a country founded on the Supremacy of God. To be sure they have failed in some of their efforts, most notably, their attack on the Kadhi’s court, but in sexual matters, their success is evident. It is only a matter of time before the effort to teach ‘creation science’ gathers storms while sex education is reduced to abstinence morality crusades.

Article 34 [32] of the draft constitution emerging out of Bomas III purports to protect life which it seeks to define as beginning at conception. This represents a major success by the Christian fundamentalists (hypocritically ‘secular’ when going after Kadhi’s courts) entrenching their theological conception of life at the expense of all contrary views so as to ensure the abortion rights are never recognised in Kenya. Thus by constitutional fiat, these fundamentalists seek to squelch debate and crown themselves victorious for eternity or at any rate till the Second Coming which they assure us is just around the corner.

This provision is hardly redeemed no by the suggestion that the Constitution can be amended for as anyone with any experience in so-called Western democracies will tell you that the requirement of supra-majorities and specialised tedious procedures for amending constitutions have worked to ensure that virtually no formal amendments take place. Further, it gives veto powers to well-organised minorities as was the case for ERA in the United States proves

To understand the egregious nature of the definition of life at Article 34[32] of the draft constitution, it is useful to review the competing claims in the abortion debate. The purpose of this is not to resolve the issue but remind us of the vast distance between the two camps as a prelude to a consideration of the legitimacy of ensconcing the religious view in a constitution.

For the side which ingrained their view at Bomas III, the issue is all so simple, based, as it were on faith of divine revelation of fixed truths and immanent laws, life begins at conception for the Lord so decreed or at any rate those who run the Church (predominantly male) so decree. (Either formulation amounts to the same thing). This is absolute. As, for example, Catholics argue when defending legal prohibition on abortion:

“… The law is not obliged to sanction everything, but it cannot act contrary to a law that is deeper and more majestic that any human law; the natural law which is engraved in men’s heart by the Creator as a norm which reasons clarifies and strives to formulate properly, and which one must always struggle to understand better, but which is always to contradict. Human law can abstain from punishment, but cannot declare to be right what would be opposed to natural law, for this opposition suffices the assurance that a law is not a law at all.”[66]

(I certainly do not wish to get into theological debate with those who share this belief, but even they wryly acknowledge that, express divine revelation on this subject is hard to defend for biblical support for this view is thin which is why Mother Theresa rushed to the inapposite Mathew 18:5. Desperate ones have admitted it with understatements which speak volumes, “The authors of the scriptures do not make any philosophical observations on when life begins..” before undermining this rare show of intellectual candour by some dubious readings of isolated verses to in an attempt to show that ‘the period of life which precedes birth’ is the object of God’s attention.[67] This linguistic sleight of hand which presumes the very proof to be sought in the bible does not disguise, bur rather confirms the absence of biblical support.)

The other side regards abortion is part of a woman’s rights issue, historically grounded on the feminist movement’s attempt to assert women’s identity independent of definitions, duties, and obligations etc, imposed by the male-dominated state and church. For them, such kind of theological ukases as those outlined above, are simply anachronistic and fail miserably to accord independent standing and identity to the woman. Stripped of the underlying oppressive ideology that sought to define the woman as a sexual savant of the men providing sexual pleasure and mother, providing the initial receptacle for the continuation of the man’s lineage, those views simply have no legs to stand on. Once the independent identity of the woman is recognised, the issue of the foetus as independently, a person infused with rights which can be enforced as against the pregnant woman, does not arise:

“…However, from a sexual and reproductive rights perspective, it is possible to assert that she herself, through her decision to procreate, infuses life into her pregnancy and constructs the human quality of the embryo/fetus. The unborn child, as such, is a creation of the woman. The viability of a given pregnancy is not merely a biological matter.

  Jorge Villareal maintains that from the point of view of the obstetrician-gynaecologist, ‘Pre-viable fetuses are only patients as a function of the women’s decisions.’ Far from constructing the woman as a uterine receptacle for the embryo, this ethical proposition situates the woman as the subject at the centre of the reproductive stage, recognising and respecting her decisions regarding her pregnancy, as a crucial element in its viability.”[68]

Consider further the next pair of contrasts from the same sources on the issue of women’s rights, motherhood and biology

First the, Sacred Congregation for the Doctrine of the Faith:

“The movement for the emancipation of women, insofar as it seeks essentially of all unjust discrimination, is perfectly on sound ground.. In the different forms of cultural background there is a great deal to be done in this regard. But one cannot change nature. Nor can one exempt women, any more than men, from what nature demands of them. Furthermore, all publicly recognized freedom is always limited by the certain rights of others.”[69]

Susanna Rance:

“Abortion is constructed as socially dangerous for reasons far removed from any concern for public health. Rather, it is represented as risky because it puts at risk patriarchal control of women’s sexuality and fertility, a system of belief which fears rejection of maternity by a woman-mother. Abortion must remain unsafe according to the unwritten law of patriarchal power, the law of the father: ‘Not the flesh and blood father, nor the father in the purely symbolic sense, but a certain type of society and of organisation of power.”[70]

The one thing that is striking about the positions outlined above is not so much their contrasts, but absence of any shared matrix about even what the debate is about let alone the answers. This is the one thing that partisans of the debate are likely to overlook at their peril. It was certainly overlooked at Bomas III when Article 34 [32] was passed.

To my mind, the principal issue the article raises, is not directly the question of the morality of abortion, i.e. whether or not a particular delegate favoured or did not favour abortions but rather whether, it is a legitimate exercise of constitution–making power, to take sides over this a hotly contested issue where the nature of the game and field of play itself is not agreed, let alone the rules, and assert control over a woman’s body. Who is really, to employ that irritating phrase, playing God here?

In answering this question, it seems to me that Justice Holmes’s admonition about constitutional interpretation in his powerful dissent in Lochner v New York applies with even greater force in the context of constitution making:

The constitution is made for people of fundamentally differing views, and the accident of finding our certain opinions natural and familiar or novel familiar or novel and even shocking ought not conclude our judgment upon the question whether statutes embodying them conflict with the Constitution.”[71]

When Holmes was protesting he was objecting to his colleagues tendency to read into the constitution their preferred political philosophy. Happily for the Americans, all the changed when Roosevelt quite properly took on Court and the latter eventually backed down. Unhappily for us, our fundamentalists do not wish for such kind of contests for they wish to entrench their philosophy in the constitution itself forgetting the injunction that it must accommodate fundamentally differing views.

The argument that this legitimate because it is democratic simply does not wash. Firstly, as is well-known, the main reason why the Christians were insisting on an article defining life as beginning at conception was their quite reasonable apprehension, that the pro-choice camp was developing a groundswell of support that would eventually lead to the repeal of the provisions criminalising abortion i.e. the European way of decriminalisation followed by regulation. Theirs was an effort to pre-empt such changes which would come via the political process of legislative change, reflecting a fear and mistrust of the ‘democratic’ process rather than fidelity to it.

Further, even if it were true that this is an instance of majoritarianism, it is odd that this provision is included in the Bill of Rights whose principal justification is that certain enshrined rights, liberties and freedoms are to be protected from the majority. Surely, minority protection cannot depend upon a permission slip from the majority, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections,”[72] I do not defend this theory here but rather use it, just point out the speciousness of the position of that who are nominally committed to a having a bill of rights, should rely on the views of the majority as to what the constitutional restraints on that majority should be. Hey, why do we need a bill of rights at all when the dominant coalition will always give permission slips for the exercise of rights?

The self-serving argument that in arguing against abortion one is speaking for the voiceless unborn (rather than expressing one’s moral view that the unborn is a person with rights which should be protected), is simply too preposterous to merit any discussion.

It one thing for one to proclaim her/his faith and act out her/his beliefs. It is quite another for one to assert the violence of the government/state to enforce compliance by all to such faith and beliefs. Once again, Judge Posner’s dissent (upheld, as correct, on appeal by Supreme Court)[73] in Hope Clinic v Ryan captures the point:

“It remains only to make clear that in finding these statutes pernicious and unconstitutional I do not mean to criticize anyone who believes, whether because of religious conviction, non-sectarian moral conviction, or simply prudential belief that upholding the sacredness of human life whatever the circumstances is necessary to prevent us from sliding into barbarism, that abortion is always wrong and particularly so in late pregnancy, since all methods of abortion are gruesome. If a woman is told by her physician that her fetus will be a Down’s baby or Tay-Sachs baby or will be born without arms or legs, or that her own health or even life will be endangered is she carries the baby to term, decides nevertheless against abortion, I would be the last to criticise her decision. I might consider her a heroine or a saint. But what is at stake in these cases is whether people who feel that way are entitled to coerce a woman who feels differently to behave as they would in here situation.[74]


Based on his understanding of the United State’s Constitution as interpreted by the Supreme Court, Judge Posner answered that question in the negative. Based on the principle that a constitution must be a shared document, reaching out to all and neutral with respect to contested moral issues such as abortion, I would also answer the question in the negative.

The cynical manipulative hubris through which the Christians, driven by the American religious right (not African values, emanate eternal biblical truths etc) have sought to use the constitution making process and transform state apparatus into batons with which to bludgeon everyone to accept their theology on the issue of abortion is particularly egregious and indefensible.

  1. A. Amoko

[1] This seems to be a reliance on Mathew 18:5 “and whoso shall receive one such little child in my name receiveth me.”  To be sure, Christians struggle to provide Biblical support of their view that abortion is a sin or life begins at conception, but this, with due respect to Mother Theresa, is really way-out.  Maybe she was relying on another verse or perhaps a different bible?

*[to confirm the accuracy of the quotation and source]

[2] Another apt example of the religious basis of most anti-abortion advocates but from the American right is “the battle over abortion rights is part of the age-old battle that dates all the way back to the fall of Satan.  It represents the desire for God-like power and authority. This power hunger was Satan’s downfall just as it was the catalyst to the demise of Adam and Eve, thus the entire human race. Abortion is another way people play “God.”  God says, “NO!” available at http:/ I cite this because such prominent conservative Americans as John Ashcroft, the Attorney General, and Tom Delay, the true leader of Republicans in Congress, subscribe to such beliefs.

[3] 410 U.S.113 (1973)

[4] This is rather controversial statement as there as scholars such as David J Garrow would argue that in fact Roe v Wade rescued a lackadaisical pro-choice movement which was reeling [get citation]

[5] The right to privacy ….is broad enough to encompass a women’s decision whether or not to terminate her pregnancy” Roe v Wade 410 U.S. 113, 153 per Blackmun J

[6] “We, therefore conclude that the right of personal privacy includes the abortion decision, but that right is not unqualified and must be considered against important state interest in regulation.” Roe v Wade 410 U.S. 113, 154 per Blackmun J.

[7] The substantive part this proposed Amendment simply read “Equality under the law shall not be denied or abridged by the United States or by an state on account of sex.” ERA enjoyed enormous public support and passed with overwhelming support in Congress in 1972 signed promptly by President Nixon and by early 1972, has secured ratification in thirty states before running into the eventually successful opposition mounted by the stop-ERA group, opposition mounted on the basis of protecting traditional family values. It was successful by preventing a sufficient number of states ratifying it. See generally D.G. Mathews & J.S. de Hart, Sex, Gender and the Politics of ERA.  New York: OUP, 1990

[8] It is not atypical to find American academics, who are supposedly more sober-mined, being possessed by paroxysms of superlatives when discussing the American constitution hence one can find Professor Steven Calebresi gushing, “I give it most of the credit for the fact that ours is the wealthiest, most technologically advanced, and most socially just society in human history, not to mention the fact that we have become a military superpower.”  Where is the sick-bag?

[9] Law society of Canada v Skapinker [1984] 1 S.C.R. 357, 367

[10] [Cite sources on the evolution of American Society and politics in the New Deal, Eisenhower, Great Society and Reagan eras]

[11] Rubbishing their views as antiquated, Roosevelt repeatedly demanded that the judges should “recognize and apply the essential concepts of justice in light of the needs and facts of an ever-charging world.” – [confirm quote and get precise citation from the Public Papers of Franklin Delano Roosevelt]

[12] This is a view that is now something of a norm that courts either have or should have the last word on the meaning, and effect of constitutional provisions against all comers. The rest of us are expected to obsequiously kowtow to them. I violently disagree with this view as historically uninformed, empirically empty, normatively offensive, politically corrosive and above all, profoundly un-democratic as it only serves to secure more firmly a corporate and professional oligarchy under the guise judges as guardians of the rule of law and protectors of individual rights but I digress. The limited point I will make here is that the account of the 1937 court-packing controversy that is usually bandied about in Kenya, i.e. a triumph of good over evil as judicial independence valiantly withstood the charge of an overly-aggressive executive with the result of upholding the pillar of the rule of law is an incomplete, inaccurate and self-serving account.

[13] Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford, Keith Whittington and Barry Friedman, “The History of the CounterMajoritarian Difficulty, Part four: Law’s Politics,” 112 University of Pennsylvania Law Review 971 (2000) on more elaborate though not similar accounts of the court-packing plan

[14] Contemporary liberal commentators described the Court as crowed, “the Nine- Old Men had about-faced, donned the habiliments of liberalism, and had in eth same stroke removed the need for the “infusion of new blood.”

[15] See particularly, William E. Forbath, “”The New Deal Constitution in Exile,” 51 Duke Law Journal 165 (2001)

[16] 304 U.S. 144 (1938).

[17] Mark Tushnet’s “The Supreme Court 1998 Term Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration,” 113 Harvard Law Review 29 (1999)

[18] 347 U.S. 483 (1954)

[19] Brown v Board of Education 349 U.S. 294 (1955)

[20] Baker v Carr 369 U.S. 186 (1962); Wesberry v Sanders 376 U.S 1 (1963); Reynolds v Sims (1963) being the most famous of these decisions.

[21] Gerald Rosenberg The Hollow Hope: Can the Courts Bring About Social Change, Chicago: University of Chicago Press, 1993, Michael J Klarman, “Brown, Racial Change and the Civil Rights Movement,” 80 Virginia Law Review 7 (1994).

[22] Derrick Bell, And We are not Saved: The Elusive Quest for Racial Justice Basic Books, 1989. Indeed, Professor Bell’s, a former civil rights lawyer with the NAACP, disillusionment with Brown is so complete that in his latest book, he has argued that the Court should have upheld the ‘separate but equal’ segregationist principle of Plessy v Ferguson but just demanded that the equality had to be real with respect to blacks- see Silent Covenants: Brown v Board of Education and the Unfulfilled Hopes for the Racial Reform. New York: OUP, 2004. For an equally damning analysis of Brown, see Charles J. Ogletree All Deliberate Speed; Reflections on the First Half-Century of Brown v Board of Education. New York: Norton, 2004 arguing Brown did nothing to address the social inequality that that predominantly harms African-Americans.”

[23] Beverly Daniel Tatum, Why are all the Black Kinds Sitting Together in the Cafeteria? And other conversations about Race, New York: Basic Books, 1997; A. Hacker, Two Nations: Black and White, Separate, Hostile and Unequal. New York: Ballantine Books, 1992

[24] 354 U.S. 234 (1957)

[25] [cite Mark Tushnet’s comments on this from his Harvard Law Review foreword]

[26] 354 U.S 449 (1957)

[27] 367 U.S. 643 (1961)

[28] 372 U.S. 1963 (1963)

[29] 378 U.S. 478 (1964). The particularly hyperbolic tone of the four dissents this decision provoked provided enticing fodder for the Court’s critics. Such invectives  as “do not suggest for a moment that law enforcement will be destroyed by the rule announced today. The need for peace and order is too insistent for that. But it will be crippled and its task made a great deal more difficult, all in my opinion, for unsound, unstated reasons, which can find no home in any of the provisions of the Constitution” were too tempting to be resisted by the critics and were not as the rhetoric of handcuffing the police gathered storm

[30] 384 U.S. 436 (1966)

[31] The racial angle of these decisions should not be overlooked for the Court sought to address racial imbalance in criminal prosecutions as one of the Warren’s court usually fiercest academic critics put it “The problem of anti-Negro discrimination and the crudities of criminal procedure in the states were deep and dangerous cancers in our body politic. They called for drastic action,” Phillip Kurland [get full citation, was this is his Harvard Law Review foreword?]  Anyone with even a passing familiarity with current reality of current American criminal procedure must question just how useful these decisions were for African Americans. Their relative lack of success has caused Derrick Bell to cynically comment “the precedents take a life of their own, often enlarging the scope or quality for whites to a greater extent than they did for those intended as initial beneficiaries, “Getting Beyond a Property in Race,” 1 Journal of Law & Policy 27,35 (1999)

[32] Friedman, “The Birth of An Academic Obsession: The History of the CounterMajoritarian Difficulty: Part Five,” 112 Yale Law Journal (2002)

[33] See generally T. R. Gurr, “Historic Trends in Violent Crime: Europe and the United States’, T. R. Gurr (ed), Violence in America, Volume 1: The History of Crime. California: Sage, 1989

[34] Professor Harold Packer wrote “Middle class city dwellers, appalled by the Hobbesian jungle around them, began to wonder if the pendulum had swung too far,” quoted by Friedman, supra note 25

[35] 370 U.S. 521 (1962)

[36] 374 U.S. 2 (1963)

[37] President Kennedy’s reaction to Engel urging believers to pray more at home is priceless.

[38] Richard A. Posner, “The Uncertain Protection of Privacy by the Supreme Court,” 1979 Supreme Court Review 173,

[39] 281 U.S. 479 (1965)

[40] 405 U.S. 438 (1972)

[41] 388 U.S. 1 (1967)

[42] For a much broader but accessible discussion of growth of right-wing movements in the United States during the twentieth century showing the development of the various constituent parts of the current conservatives, see Sara Diamond, Roads to Dominion: Right-Wing Movements and Political Power in the United States. New York: Guildford Press, 1995

[43] 410 U.S. 179 (1973)

[44] Roe v Wade 410 U.S. 113, 153 (1973). Subsequent decisions such as Roe. Planned Parenthood v Danforth and Colanti v Franklin have affirmed that the decision is for the woman with the attending physicians with the putative father not having much of a say.

[45] ibid 154

[46] ibid 162-3

[47] “Health” has been fairly broadly construed- Planned Parenthood Assn. of Kansa City v Ashcroft 462 U.S. 476 (1983)                                                                                                                                                                     

[48] Roe v Wade, supra note 44 162

[49] ibid 162

[50] Webster v Reproductive Health Services 492 U.S. 490, 557 (1989) per Blackmun J dissenting

[51] 505 U.S. 833

[52] Of course since, this decision was decided Souter has come out and associated himself with what nowadays passes for the Court’s liberal wing while O’Connor and Kennedy have joined the rest of the conservatives in launching what can only be described as a conservative counter-revolution to the Warren court- see Tushnet, supra note 14; Jack Balkin & Sanford Levinson, “Understanding the Constitutional Revolution” 87 Virginia Law Review 1045, (2001)

[53] 2004 Who Decides: A State by State Report on the Status of Women’s Reproductive Rights available online at

[54] Get full citation of Akerlof’s interview with Der Spiegel

[55] Ann C Hwang & Felicia Stewart, “Family Planning in the Balance,” 94 American Journal of Public Health 15, 15-16 (2004)

[56] “Memorandum of 28th March, 2001- Restoration of the Mexico City Policy”

[57] “Memorandum of 29th August 2003”

[58] See generally, Breaking the Silence: The Global Gag Rules’ Impact on Unsafe Abortion. Center for Reproductive Rights: New York, 2003

[59] Bush v Gore 121 S. Ct,.525 per curium Opinion of the Court (Rehnquist, CJ, O’Connor, Scalia, Kennedy & Thomas JJ)

[60] Carhart v Ashcroft, 287F. Supp. 2d 1015 (D. Neb. 2003; National Abortion Federation v Ashcroft, 03 Civ. 8695 (RCC) (S.D.N.Y. November 6 2003); Planned Parenthood Federation of America v Ashcroft No. C 03-4872 PJh (N.D. Cal, November 7 2003)

[61] Hope Clinic v Ryan  195 F. 3d 857, 881 (CA7 1999) per Posner Chief Judge (dissenting)

[62] R v Morgentaler [1988] 1 S.C.R 30

[63]  ibid, 45 Judgment of Dixon CJ joined by Lamer J; 80 reasons of Estey J joined by Beetz J. Wilson J writing for herself accepted for the most part, the conceptual framework outlined in Roe v Wade but would have left for the legislature to define such matters as viability.

[64][64] The Queen v Morgantaler [1993] 3 S.C.R. 463

[65] See sources cited in footnotes nos. 18-20 above.

[66] Declaration on Procured Abortion Sacred Congregation for the Doctrine of the Faith.                          

[67] ibid footnote no. 5.

[68] Susanna Rance “Safe Motherhood, Unsafe Abortion: A Reflection on Impact Discourse” Reproductive Health Matters, No. 9, May 1997, 10, 15

[69] Supra note 63, emphasis added

[70] Supra note 65, 15 (footnote omitted), emphasis added

[71] Lochner v New York 198 U.S. 45, 76 (1905)

[72] West Virginia State Board of Education v Barnette, 319 U.S. 624 (1943) 319 U.S. 624, 638 per Jackson J

[73] See Steinberg v Carhart

[74] Hope Clinic v Ryan, supra note at 60, emphasis added.

Share on Social Media
Follow by Email