NAIROBI, Kenya -- The abortion issue in Kenya is raucous, rancorous and highly emotional and political, just like in the U.S., but there is one major difference: In Kenya, abortion rights have been liberalized in certain cases in a Constitution approved in a public referendum two years ago.
I spent four weeks in Kenya this year working with the Reproductive Health and Rights Alliance, a coalition of six Kenyan organizations committed to improving maternal health, to communicate better to key groups the nature of those changes. I talked to some 40 doctors, gynecologists, nurses, lawyers, government bureaucrats and technocrats and non-governmental workers and journalists. And a few taxi drivers.
The issue of abortion is so sensitive and taboo in Kenya that it almost derailed the constitution-making process. I discovered that even though the debate was heavily covered by the Kenyan media leading up to the August 2010 referendum, there's still a lot of misinformation on what exactly the Constitution changed, or didn't change -- even among health providers. Some think the Constitution legalized abortion on demand. Others think it changed nothing and abortion remains virtually illegal. The truth lies somewhere in the middle.
The Constitution says that:
- "Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care"; and
- "A person shall not be denied emergency medical treatment."
And that innocuous "unless" is what keeps the abortion issue alive in Kenya, almost two years after the constitutional referendum:
"...unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law."
Abortion opponents say that those loopholes are tantamount to making abortion available "on demand" and are big enough to drive a herd of Masai cattle through (such as the question of how to define "trained health professional, "emergency treatment," and deciding which situations endanger the life of a woman).
Abortion rights advocates say it's not abortion on demand at all, and that these reasonable exemptions will save the lives of thousands of Kenyan girls and women who would otherwise be exposed to dangerous, back street abortions.
One thing is not disputed: Kenya's maternal mortality ratio is unacceptably high: The "2008-09 Kenya Demographic and Health Survey" reported 488 maternal deaths per 100,000 live births, although a World Health Organization report "Trends in Maternal Mortality:1990-2010" just published suggests that Kenya's maternal mortality ratio has dropped to 360 in 2010. Nevertheless, WHO still calls it "insufficient progress."
Unsafe abortions account for anywhere from 30 percent to 50 percent of those deaths. That translates into an estimated 21,000 women admitted to public hospitals every year for abortion-related complications, with 28 percent of them having severe complications. More than 2,800 of them die every year, and many more suffer serious physical impairment.
And, by the way, everyone I talked to thinks abortion is grossly underestimated -- due to stigma, discrimination and uncertainty over the legal consequences -- so the actual figures are surely much higher.
My biggest surprise was to learn that 60 percent of costs incurred by public hospitals go to treating probable unsafe abortions. If that was better understood by Kenyan government officials, I think many of them might be more inclined to address this inefficient use of government health resources.
I talked to health providers who are still harassed by the police even though they believe they are following the law. Several told me they are required to keep records of abortions and, if the numbers are too high -- even when the abortions are legal, in their view -- they get in trouble. One private health clinic director told me that she had to fire a doctor who was perceived as performing too many abortions, even though she believes he did nothing wrong.
Several health providers I talked to alleged hypocrisy by abortion foes in the church. A nurse in a low-income neighborhood of Nairobi told me he once gave an abortion to a Catholic nun. When I told this story to another nurse in Nakuru, he scoffed: "I've given abortions to many nuns, too many to remember."
What happens next with abortion in Kenya? First, elections in early 2013 will choose a new president and no one really knows how the outcome of that will affect the abortion issue. Second, the Parliament is expected to enact legislation to implement the intent of the Constitution. Again, the outcome is far from certain.
One thing is clear: The 2010 Constitution is here to stay and unlikely to be changed. So the Kenyan people -- including those who support and oppose abortion -- are going to have to find a way to live with it.