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Arguments for the suspension of the 1838 abortion law


Just as the Minister for Women`s Rights is about to hold an "nth" round of national debate on abortion this Wednesday, Muvman Liberasyon Fam (MLF) spells out the arguments for the suspension of the 1838 abortion law. The first part of this article was published in the Monday 27th April edition of Le Mauricien. The demand for the suspension of the abortion law is gaining wider and wider support from women`s organisations, human rights organisations, journalists, doctors. LALIT has already signed the petition initiated by the Common Front on abortion.

Why the Common Front on Abortion calls for
Suspension of the 1838 abortion law

The newly set up Common Front on Abortion has aligned itself behind a completely new demand: for the suspension of the 1838 abortion law. In the wake of the tragic death of 31-year-old photographer-journalist Marie-Noelle Derby following an illegal abortion, the women's movement and other concerned organizations were troubled that for far too long now there has been just "debate", and that in the meantime women are suffering illness, prosecution, and death. We are not in favour of any further delay - whether by pretext of a referendum which involves a prior Constitutional Amendment nor by the pretext of the need for yet another "national debate" to be launched. We want change immediately, while debate continues. As everyone has now realized the old formula of debating the "pour et contre" is now identified as being part of the problem. It has become an ongoing cause of a major public health problem for women in the country.

Why have we called for the suspension of the law as an interim demand until new legislation is debated and voted in?
There have, in the past and without success, been five attempts to introduce a bill to replace the 1838 Code Napoleon abortion law:

*1976-1978 - In reply to a Parliamentary Question by James Burty David pointing towards the necessity that the abortion law be changed in favour of women, the then Prime Minister, Sir Seewoosagur Ramgoolam said that there would be national debate on the question, and that a "comité spécial" would be set up prior to a Bill being presented in Parliament. Although there was national debate, no Bill was ever presented. Copying this, the MMM-PSM Programme Gouvernmentale in 1982 promised instead of abortion decriminalisation, a "national debate" on the issue.
*1983 - Sir Aneerood Jugnauth's Health Minister, Jugdish Goburdun, in fact prepared a draft bill, a very progressive one if judged by the leaks to the press published at the time. This Bill after having been discussed in great detail in the press, "disappeared"
*1988 - Sir Aneerood Jugnauth's Health Minister Dr. Beergoonauth Ghurburrun and Women`s Rights Minister, Sheila Bappoo, prepared another draft bill, and this, too, strangely "disappeared".
*1995 - Women`s Rights Minister Sheila Bappoo announced a "national debate" towards a new bill in her White Paper on Women and Development, but this mirage of a Bill, too, disappeared.
* 2001-3 - The MSM-MMM Task Force Report (Premila Patten chaired the Task Force) drafted a Bill that Women` Rights Minister Arianne Navarre-Marie announced would be presented in 2003. This, too, "disappeared".

And now in 2009, there is another phantom "Bill" stalking the National Assembly like a rumour, but not actually materialising anywhere.

We in the Muvman Liberasyon Fam have worked for 33 years for a Bill to get to the National Assembly. To no avail, so far. So, given our experience of mysterious "disappearances" of Bills, we believe in the need for an INTERIM measure, a measure that will take effect immediately and last until this illusive "Bill" (to replace the 1838 Criminal Code Section 235) can be put on the Agenda of the National Assembly by the Prime Minister, and be voted in.

The demand for suspension is this interim measure.

The logic behind the demand is that It takes less political commitment on the part of the Government and of the Opposition to suspend and existing law than to justify a new law. Any MP only has to rely on public health arguments to justify his position. It will also, once in place, be a pressure for a new and better law. And if the new law is slow to become a reality, women will not, in the meantime, continue to be exposed to illness, sterility, prosecution, and in the worst case, death, as a result of being pushed into illegal abortion. If a new Bill takes another 30 years, it will not be 30 years in which 45,000 women are sick and have to be admitted for tidying up after illegal abortions, nor in which over 500 women meet their deaths, nor dozens face police enquiries. Nor will doctors, in the meantime, be hounded out for practising their profession.

The context has never been better
The present context is ideal.

Wide Support
There is wide support for this interim demand. 9 organizations, including the Mauritius Family Planning and Welfare Association (MFPWA), Women in Networking (WIN), Soroptimists, Mauritius Alliance of Women (MAW), the Muvman Liberasyon Fam (MLF), Amnesty International (Mauritius), Lalit, the Women's International Association and a trade union federation, Federation of Parastatal Bodies and Other Unions have signed a petition demanding suspension of the 1838 abortion law. The MP, Leela Devi Dookun has signed up in her own name. An unprecedented number of doctors, journalists and editorialists have also endorsed the demand for suspension.

Evolution in the "against" camp
There is today, no coherent "against" camp left:
* The Catholic Bishop Maurice Piat, has said that, although he is not in favour of legalization of abortion, he understands the "distress of women" and understands those supporting them, so that women who have had abortions are not viewed as "delinquents". This is about as enlightened as a bishop in 2009 can be without risking excommunication.
* Monique Dinan, of Mouvement pour l'Aide a la Maternité, has publicly declared during this recent round of debate that she is in NOT in favour of imprisonment for women who have had an abortion, that she has NO objection to abortion if pregnancy endangers a woman`s life, in the case of rape or incest, or in the case of a child pregnancy.
* Father Labour, the Vicar General of the Catholic Church has stated publicly that the DPP could use his "discretion" to vary the "peines" and "prosecutions" so that women are not penalised by the law! (This is technically absurd and proposing something dangerously arbitrary, of course, but the spirit of what Father Labour is saying shows an openness never seen from his camp before.)
*The experts on Muslim law all concur that abortion only exists after the breath of Allah is infused into the foetus, which they say is after 14 weeks or so. The President of the Jummah Mosque has already made a public statement to this effect.
*Public sympathy for Marie-Noelle Derby caused a quantum leap in peoples' understanding of the need to de-criminalize abortion.
*People are at present troubled at the prosecution of a 25 year old woman, Shabeela Kalla, for illegal abortion.
*The recent rapes of children leading to their pregnancy has highlighted the need for care for those forced into unwanted sex. Girls under 16 are not old enough to consent to sex, under the law, and all sexual intercourse with them is defined by law as rape. Many women are under duress from their partners to have sex without contraceptive cover.
*Everyone knows that contraception is and can never be 100% safe.

MMM has taken a stand in favour of Legalization of Abortion
Ariane Navarre-Marie announced the MMM's stand in favour of legalization of abortion at the first meeting of the Common Front on Abortion last month, and re-iterated it in a statement to Radio-Plus This is the first time a Parliamentary party has committed itself, as a party to legalisation. Labour and the MSM leadership have always been supportive of legalization, but cowardly. There should now be a critical mass in favour of suspension.

Opposition already has a stand to support the "freezing" of another law
The MMM currently has an official stand of supporting the trade union movement`s demand to "freeze the ERiA and EReA". The leader of the Opposition, in L'Express 9 March, 2009 said that "Le MMM s'associe pleinement avec la demande des syndicats de geler ces deux lois ..." So, the Prime Minister can be assured of not having technical objections to the supposed impossibility of suspending a law from the main Opposition.

In addition, there are already MSM and Labour members who agree with the idea of suspension.

Forms that a suspension of the 1838 abortion law could take?
The demand for "suspension" of the law is a thoroughly thought-through demand. It intends to give the Government and Opposition a wider array of political, legal and administrative options. There are many ways that the law, in effect, could be "suspended". There are many, many options, but these options could include one of the following or a combination of them:

A Moratorium
The Government could announce a "moratorium". A moratorium is in legal terms, "a suspension of activity until a future event or resolution of a matter. For example, states may pass a moratorium on imposing the death penalty until issues surrounding the death penalty can be resolved." (" Indeed in Mauritius the death penalty has been suspended. Of course, many laws are routinely suspended, until "Commencement" at a future date.

"Political" suspension subsuming "legal" revocation
The National Assembly could take the political decision that it will suspend the law, i.e. legally revoke it by an Act of Parliament intending to be an interim measure, pending new legislation. That is at the core of what suspension is. The aim is to prevent further deaths, illness, and charges against the women and the medical practitioners concerned. In this case, while the law is suspended, abortion will be covered, as all medical procedures and acts of prescribing medicines are, by the law that governs the illegal practice of medicine, so charlatans will still, of course, be open to prosecution.

A law to simply suspend the existing Law
This legal procedure is used in Commonwealth countries, and could well be used. The States of Guernsey, for instance, this year, suspended a law (see The Dwellings Profits Tax (Suspension of Law) (Guernsey) Ordinance, 2009). This means that the operation of an Act is suspended during the period of operation of the Ordinance voted to suspend the Act.

PM informs DPP that law will be reviewed
The Prime Minister can also officially inform the DPP that he intends to bring in a Bill to change the 1838 abortion law. The DPP, being informed, formally stops prosecutions against all women and doctors in abortion cases, under the abortion law, as the law is to be changed in any case. He would then only charge charlatans under other laws, for the illegal practice of medicine. Because there will be no prosecutions under the law, doctors will be able to prescribe abortion pills that pharmacies will be able to dispense. Hospital doctors will be able to take decisions on the basis of women's health. This kind of suspension would not, however, be satisfactory, for more than a few weeks.

State Law Office re-interprets the meaning of abortion law
The SLO has in the last years, publicly announced its "interpretation" of the abortion law to exclude cases where a woman`s health is endangered by pregnancy. It could also publicly "interpret" the abortion law so that it involves only women "quick with child" as stated in the English version of the law, which would seem to be the relevant version, as there are other new elements that are not in the French one. The term "quick with child", used in the English version, according to the Concise Oxford Dictionary means "a stage of pregnancy where foetal movements have been felt" and the medical textbook Clayton says that quickening happens at the 20th week of pregnancy (p. 12 of the 1972 edition).

Bill to define "Quick with Child"
The Prime Minister could bring in a clarificatory law to be voted by Parliament to define "quick with child" according to common usage. Any MP who voted against would seem ridiculous, as he or she would be denying the meaning of a phrase all English dictionaries agree on.

Related demand
There is a second demand that goes hand-in-hand with the first, that is, that the Government announce publicly that evidently, even before the law is suspended, the laws relating to illegal practice of medicine definitely apply to backstreet abortions. Anyone who uses medicines or any other procedure to provoke an abortion and who is not qualified to do so will be charged for illegal practice of medicine. This will cover charlatans.

Obviously our arguments against the existing law are well known.
*It criminalizes the quasi-totality of women of the country.
*It causes ill health. It has caused some 1,500 to 4,000 women a year to be admitted to hospital every year since Independence. Since Independence over 50,000 women have suffered health problems because of the archaic anti-abortion law. About 10 times that number will have had recourse to an abortion without needing admission. This makes the continued illegality of abortion the biggest public health problem in the country.
*It causes death. An MFPA study in 1987 showed that in the first 19 years since Independence, some 475 women have died as a result of badly done abortions, most of them listed under "causes of death" such as septicaemia, infection, fever, haemorrhage, tetanus, gastro-enteritis, peritonitis.
*It makes women suffer indignity, and makes us second-grade citizens, with special criminal laws against us.
*The 1838 law was designed to protect women from the dangers of an abortion 171 years ago, when science and technology were so poorly developed that any abortion was, indeed, dangerous. This same law now has the contrary effect of forcing women into dangerous backstreet abortions which put our health at risk, when there are new forms of pills and of treatment that make abortion safe.

It is time to suspend the existing law. Our Common Front calls on the Prime Minister to do so, while the national debate announced by the Minister for Women's Rights proceeds. Our Common Front calls for each and every Member of the National Assembly to take his/her responsibility so that never again, are there deaths due to illegal abortion. This way women's health will be assured IN THE MEANTIME. This way, all charges will be dropped against Shabeela Kalla IN THE MEANTIME.

Rajni Lallah and Lindsey Collen
For the MLF
Member organisation of the Common Front on Abortion
21 April, 2009