The High Court recently nullified the Ministry of Health’s withdrawal of service delivery standards and guidelines and a training curriculum on abortion that had been in force for close to six years.
When the current Constitution was being written, abortion was a major contentious issue. Some campaigners against the draft used abortion to get votes at the referendum. Many of abortion-based arguments were confusing, with opponents out to convince all and sundry that the new Constitution would open floodgates for abortion.
As fate would have it, the majority of Kenyans voted for the new Constitution. As soon as it was promulgated, there was palpable anxiety within the health sector. Not many people knew what the new law on abortion portended for the sector.
Could a woman walk into a hospital and demand to have abortion? Who could perform an abortion legally? With these and many other questions, the ministry needed to develop guidelines to allay the confusion.
It constituted a committee to lead the development of service delivery guidelines on abortion based on the new law. Given the contentious nature of abortion, the ministry went beyond the conventional way of developing the guidelines.
In normal circumstances, the committee would have comprised only health professionals. But in this case there were lawyers, gender experts, religious leaders and community representatives. I was in it as one of the health experts.
To create consensus, the committee held three stakeholder meetings with a cross-section of organisations that, again, went beyond the health sector. The last such meeting, which had equal representation from what was then the “Yes” and “No” camps in regard to the referendum, validated the final document and the ministry was given the go-ahead to launch it.
First, the document prioritised prevention. There were guidelines on how families, the religious community and the school and health systems can curb unintended and unwanted pregnancies so as to reduce the need for abortion.
Secondly, it was realised that there were situations where abortion would be necessary that the law had expressly provided for. The committee was unanimous that abortion was not allowed on request in Kenya.
The law put the duty of care on trained healthcare professionals to determine when abortion would be necessary to save life and preserve the health of the woman and the foetus. The guidelines defined a trained health professional and detailed situations considered as endangering life and health and where and how such abortions would be conducted.
Thirdly, the guidelines detailed how to manage a woman who had experienced unsafe abortion. This is the situation where a woman would either be bleeding, having an infection or facing other dangers following a botched abortion. It was realised that such cases are still prevalent in the country and that hospitals had to be ready to receive such women and treat them to save their lives. The same case applied to women undergoing miscarriages.
The ministry launched the guidelines and, for one year, they were implemented. But what looked like a success story in managing abortion was not to last long. Without warning or consultation with stakeholders, the ministry withdrew the guidelines on claims that they had been misused. Notably, no formal evaluation of their implementation was done.
This unprecedented move threw the health sector into serious confusion. It was not clear whether it was still right to carry out activities for the prevention of unwanted pregnancies. Neither was any health worker sure of how to handle a woman whose life was endangered by pregnancy. Emergency treatment of women who had undergone unsafe abortion or had had miscarriage also suffered.
Health workers who sympathised with such women having issues around abortion were victimised. Police officers occasionally walked into private clinics and demanded for money, accusing health workers of performing abortions.
Some health workers ended up in court but most of the cases were thrown out. Sadly, many women died then. In fact, one of the petitioners died before the case was determined.
We may never know how many lives were lost as a consequence of the confusion. However, if only the ministry had followed known procedures for revising or updating medical guidelines, many women would have been saved and the trained health professionals been in a better position to make the right decisions on abortion.
Worryingly, the ministry now seems to have ignored the recent court order. Will it look on as women continue to die for lack of abortion-related health services?
Prof Osur is a reproductive health expert. [email protected]