Supreme Court of Nepal Calls on Government to Make Legal Abortion a Reality


The thought of a woman dying
or being forced to carry an unwanted pregnancy because a Government
denies her legal access to a safe abortion is deplorable. Yet, it is
equally unacceptable for a Government to hide behind what appears to
be an acceptable law that in reality does little to guarantee a women’s
right to choose or to put her health and life first.

On May 20, Nepal’s Supreme
Court ordered the Nepalese government to enact a comprehensive abortion
law to guarantee that women have access to safe and affordable abortion
services.  Abortion has been legal in Nepal since 1992 when the
government introduced an amendment to the National
Code
to allow a
woman to have an abortion within the first 12 weeks of pregnancy, up
to 18 weeks if the pregnancy is the result of rape or incest, or at
any time if it is believed that the pregnancy will affect her physical
and mental health. The amendment represented not only a step towards
improving the health of Nepalese women but also what an untenable situation
the former law created, with one-fifth of women in prison in Nepal at
the time of the amendment incarcerated for having had an illegal abortion.

Since the introduction of the
new law, however, numerous barriers have continued to prevent women
from accessing safe and legal abortions, the most obvious being the
lack of service providers but also a lack of awareness among women that
abortion is legal. Familial and religious values have frequently deterred
women from seeking an abortion while stigma persisted, heightened by
number of women who served prison time under the previous law. The Supreme
Court’s new decision requires the government to set up a fund to cover
the cost of abortion for poor and rural women and invest enough resources
to meet the demand for abortion services. The Supreme Court has also
instructed the government to raise awareness about legal and safe abortion
and take steps to eliminate the stigma surrounding the practice.

The petitioner in the case
was Lakshmi Dhikta, a woman from a poor household in the rural western
region of Nepal who had been denied an abortion simply because she could
not pay the fee for the procedure and was forced to give birth to her
sixth child. The case was filed back in 2007 by the Nepalese NGO, Forum for
Women, Law, and Development

supported by the Center
for Reproductive Rights (CRR)

in New York. According to the CRR’s regional manager and legal adviser
for Asia, Melissa Upreti, the decision was not unexpected but rather
a reflection of the maturity, sensitivity and progressive attitude of
the current court. According to Upreti, the Nepalese Supreme Court has
issued a number of gender sensitive decisions over the years, including
ordering the government to review
the provisions for punishing marital rape
,
which were considered too lenient. In August 2007, the Court also rejected
a writ that challenged the new abortion provisions
on the basis that they discriminated against men for allowing a woman
to terminate a pregnancy without the husband’s consent as well as
criminalizing marital rape. Upreti also credits the consistent efforts
of activists over the years to sensitize judges about gender equality
and human rights, with one of the judges who handled the case having
been involved in a CRR training on reproductive rights litigation back
in 2006. 

In one of my previous posts I have discussed the value of
the Government of Nepal’s Interim
Constitution
adopted
in January 2007 which explicitly recognizes that "every woman
shall have the right to reproductive health and other reproductive matters"

as a fundamental right. Upreti believes that this recognition
of reproductive rights as fundamental provided a strong legal basis
for the Court to recognize the claims made in this case. This is not
to suggest that the case was an easy win, in light of Nepal’s conflict-ridden
history. Upreti also notes that "the case is in large part premised
on a woman’s autonomy, a concept that does not exist in the patriarchal
framework that has dominated Nepalese society for centuries."

The decision comes after a
recent announcement by the Ministry of Health and Department of Health
Services of a plan to bring medical abortion to the primary
health-care and community level throughout Nepal, particularly poor,
underserved women, especially those living in difficult-to-reach rural
communities. The government will train midlevel providers (such as nurse
midwives), as well as doctors, to counsel women and provide medical
abortion.

There had been a number of
efforts over the years by local and international NGOs to raise awareness
about the legality of abortion and help address the ingrained fears
and shame that were standing between women and safe abortion. Path, for example, have been working to
create "dialogue groups" allowing groups of women to have discussions
about issue such as unwanted pregnancy, choice, AIDS prevention and
gender inequality. Ipas
Nepal
also began
training health-care providers in comprehensive abortion care in 2004,
as a result of which, nearly 500 providers, including nurses, have been
trained and 74 out of 75 districts have at least one trained provider.
However, despite such efforts many poor, rural women still cannot access
safe abortion services, making this Supreme Court decision truly monumental.

A significant portion of Nepal’s
maternal deaths is attributable to unsafe abortion, heightened by persistent
poverty, low rates of contraceptive use and a high percentage of deliveries
occurring without a skilled birth attendant. With one of the highest
maternal mortality rates in Asia, 830
deaths per 100,000 live births

in 2005, this Supreme Court decision reflects a much-needed push for
the government to account to its people in guaranteeing the right to
life and the highest attainable standard of health. Now civil society
groups must maintain this momentum and monitor the decision’s implementation,
working with the government to continue to make access to abortion a
reality. 

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