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Lawyer @ Center for Health, Human Rights and Development
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About Nimwesiga Seth
Promoting SRHR, Gender Justice and the Right to Health on a daily basis
INTERVIEW
QUESTIONS
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TwoCents

Briefly explain why most African states are against abortion.

Nimwesiga Seth
It is generally due to the average of conservative and preconceived perceptions purportedly informed by culture and religion yet considerably devoid of facts and out of touch with reality. Is that brief enough?

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TwoCents

Briefly talk about Roe v Wade and the case that overturned it.

Nimwesiga Seth
ROE V WADE
The case was based on a challenge by Jane Roe and an intervening doctor against Texas’
State Penal Code, articles 1191-1194 &; 1196, which prohibited abortion but for the life of
the mother being threatened. Roe, unable to receive a legal and safe abortion since her life was not at risk, brought forth a constitutional challenge that the state regulations violated fundamental rights outlined in the US Constitution. Justice Blackmun, writing for the majority, based his decision on the recognized right to privacy, which, although is not explicitly stated in the Constitution (resides implicitly in 14th or 9th Amendments), had been extensively recognized in case law in matters of family planning, marriage, procreation, contraception, and child rearing.

That there is a right for a woman to terminate a pregnancy without state interference as a right to privacy in her own family matters – but that this right is not absolute. States can attempt to regulate in this arena, but those regulations must be examined/evaluated in the due process of the law 
In his reasoning, Blackmun J outlined a balancing of 3 factors; Rights of a pregnant woman from state interference in bodily autonomy; State interest in pregnant women’s safety; and State interest in protecting the potential for life.
Blackmun J thus outlined a system for abortion regulation wherein there is no state interference  in the first trimester; states may regulate abortion in relation to prioritizing maternal health and safety in the second trimester; and following viability (third trimester), the state may regulate to protect potentiality of human life (where it does not threaten the life of the mother).

Mississippi Department of Health et al. v Jackson Women’s Health Organization et
al. 
Written by Justice Samuel Alito, his reasoning centered around common arguments among constitutional originalists – where he sought any mention of a right to abortion in the Constitution (there is not), and argued that a right to abortion is not deeply rooted in their nation’s history and traditions, and therefore should not be read into the Constitution the way that it was in Roe v Wade.
The reasons that it would be permissible to overrule 50 years of precedent: 
Court error – he argued that the court interpreted a moral question that should have been left for the people to decide  
Quality of reasoning – he argued Roe v Wade is not grounded in Constitution or precedent
Workability of the ruling – he argued that the reasoning is not easily understood or applied, it’s too vague
Effects on other areas of the law – he argued that Roe v Wade diluted standards for constitutional challenges
Reliance interests – he argued that this ruling hasn’t created concrete reliance interests for Americans, and thus the court is not obligated to uphold it. 

Given these reasons, he concluded that abortion should be regulated “by the people” ie by state governments, without federal interference.









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TwoCents

What are Sexual and Reproductive Health Rights.

Nimwesiga Seth
Simply put SRHR is a subset of the Right to Health. SRHR include freedom from sexual violence, maternal health care, the freedom to choose a sexual partner, whether or not to have children, and reproductive health care, among others. 
Important to note is that International Human Rights law recognizes SRHR in the CEDAW(Article 16, etc, Maputo Protocol (especially in Article 14), CESCR General Comment 14, just to mention but a few.

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TwoCents

Related with medical ethics, do you think people will avoid abortion.

Nimwesiga Seth

The law as is, provides cover for a health care professional who provides an abortion where he/she has reason to suspect that the life of a pregnant woman is in danger. That will go on.

Restrictive laws do not reduce abortion, they only deprive women of Safe Abortion Care.


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TwoCents

Is it true that abortion is a mode of planned family parenting.

Nimwesiga Seth
ABORTION IS HEALTH CARE. Thanks.

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TwoCents

Briefly comment on the Feminist Activism around overturning Roe v Wade.

Nimwesiga Seth
The position in Roe v Wade was that the decision to terminate a pregnancy rests with the carrier rather than the government. This was implied in the 14th amendment to the US Constitution which protects personal privacy. Overturning Roe V Wade now essentially means that the woman's power to make a decision over her body has been taken away. 
That is as much a violation of their right to privacy as it is a denial of access to reproductive health care.

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TwoCents

If 7 is answered either in the positive or negative, do you think the community morals and values have an effect on such a regime whether legislation or not.

Nimwesiga Seth
Laws are largely based on the average opinion of members of society. In countries where abortion is a crime, it is largely because of the influence of a section of the society which has chosen to define what does constitute values and morals. These are mainly conservative cultural leaders and leaders of faith-based institutions.

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TwoCents

What is the future of Abortion and SRHR in the face of Roe v Wade overturned.

Nimwesiga Seth
All is not lost. Away from the United States, Roe v Wade was just but a necessary example. Sovereign states have the ball in their court, it is up to them to embed the termination of pregnancies within their law as a health care issue and provide guidance for safe abortion care, or leave it to their citizen women to resort to unsafe abortion methods whenever they need the service.

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TwoCents

What has been the Ugandan and African Approach towards SRHR in respect to abortion.

Nimwesiga Seth
On the continent level, the protocol to the African Charter for Human and People's rights (Maputo Protocol) provides for access to safe abortion in the event of sexual assault, incest, rape and where the life of the woman is at risk, among others. State parties have the obligation to respect, protect, promote and fulfill human rights as embedded in the instrument. Uganda however, has entered a reservation on the article providing for safe abortion as a right and so is not bound by it.
On the national level, Article 22(2) of the constitution provides to the effect that no person has a right to terminate the life of an unborn child except as provided by law. However, there is no law in place to provide parameters where safe abortion can be had say where there is a need to save the life of a pregnant woman, or in case of incest, fetal abnormalities, etc.
Locally, the only law available is the Penal Code Act of 1950 which criminalizes abortion

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TwoCents

Is there any country (African) that has a progressive Human Rights regime on abortion?

Nimwesiga Seth
Sure. Zambia, for instance, permits abortion on grounds of socioeconomic status and health reasons, The other countries including South Africa, Cape Verde, Rwanda, and Tunisia are some that I can remember off head. More interestingly, DRC published the Maputo Protocol in its official gazette in 2018 making it superior to its national laws and widening access to safe abortion as stipulated in the protocol.
The high court in Kenya has held that criminalizing abortion in the penal code without the constitutional statutory framework on safe abortion is a violation of women's reproductive health rights. 
This goes to show that courts have gone along way to recognize abortion as a fundamental human right

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Anita Koske Masters' Student
city Würzburg, Germany July 6, 2022, 6:43 p.m.
In a country like Kenya, there are more than half a million abortions annually (and not all are reported) showing the huge number of women that put their lives on the line attempting unsafe near death abortions, what do you think can be done about this? Are there ways African governments can be pushed to legalize abortion? Are there any timely solutions that can be pursued?
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