Latest safe abortion judicial ruling will cut maternal deaths

Photo credit: Evelyn Samba

A High Court ruling this week declaring safe abortion a constitutional right has massive implications for hundreds of thousands of women and girls with unintended pregnancies. The ruling stems back to a ban arbitrarily placed on reproductive health care services provided by Marie Stopes International Kenya.

A few months after joining Amnesty International Kenya in 2018, I found myself in a tense, closed-door meeting with leaders from the Kenya Catholic Doctors Association, Kenya Legal and Ethical Issues Network, and the Centre for Reproductive Rights. For two hours, we debated the ethics of reproductive rights, questioned the legality of the Marie Stopes ban, and weighed its potential harm to thousands who depend on their services.

In true Kenyan fashion, we found common ground and drafted a joint statement affirming that no one should die or suffer during an abortion and called for the Marie Stopes ban to be lifted. A neutral party prepared the statement, but the Kenya Catholic Doctors Association never signed it. In 2018, we missed a chance to collectively advance the right to safe abortion.

Five years later, NAYA-Kenya and Jackline Karanja petitioned the courts to determine whether Kenya Medical Practitioners and Dentists Council, the Kenya Film and Classification Board and Health Ministry Director of Health Services were legally able to restrict Marie Stopes from operating. This week, Justice Chacha Mwita, recipient of the 2025 C.B. Madan Award, overturned three of the 2018 government directives. He ruled that the Kenya Medical Practitioners and Dentists Council and the Kenya Film and Classification Board had no legal authority to force Marie Stopes to transfer post-abortion patients or ban public advertising. Similarly, the Health Ministry’s Director of Medical Services lacked the mandate to prohibit the NGO from providing post-abortion care.

The three government agencies had jointly contravened the constitutional right to abortion. According to our courts, the blanket ban was discriminatory, overly broad and failed to affirm Kenya’s strict abortion laws. By criminalising a right anchored in our law, more worryingly it may have driven countless women and girls with unintended pregnancies towards unprofessional and unregulated back street clinics, thus endangering their lives.

This ruling is part of a broader legal trend that affirms the constitutional right to safe abortion. The 2017 Health Act expanded access by recognizing trained providers such as doctors, nurses, and midwives. In 2019, courts upheld the right of sexual violence survivors to emergency abortion care and reinstated the withdrawn Standards and Guidelines for reducing maternal deaths from unsafe abortion. In 2022, a Malindi court warned law enforcement agencies that arbitrary arrests of qualified doctors or patients is unlawful and punishable. Additionally, the availability of medication-based abortion drugs has further widened safe options when used responsibly.

This week’s landmark ruling reaffirms the centrality of pregnancy and safe abortion for the right to privacy, dignity and life. No woman with an unintended pregnancy from rape or accidental conception should be forced into motherhood. No one should die or suffer due to an abortion or a lack of post-abortion care.

This judgment is even more significant given the crisis we face. Nearly 792,694 abortions occurred in 2023. With an induced abortion rate at 57.3 per 1,000 women, Kenya is among the highest in East Africa. Yet only 18% of primary health facilities offer post-abortion care due to poor funding and prioritization. If nothing changes, an estimated 2,600 women will die from unsafe abortions and 21,000 will face life-threatening complications in 2026

Pregnant mothers must not be compelled to continue unwanted pregnancies or undertake an abortion. To ensure informed consent and safe sex, public and private reproductive health providers must accelerate science based comprehensive sex education for us all. Law enforcement agencies must not be misled into criminalising patients or health workers for seeking safe abortion services with registered medical facilities.

Unsafe abortions remain one of the major threats to women and girls globally. It is a major cause of maternal deaths and leads to physical and emotional health complications. Justice Mwita’s judgement brings Kenya closer to a society that respects access to informed, affordable, respectful and safe abortion care for all who need and choose it.

This opinion was also published in the Saturday Standard, 20 December 2025. Find Health Ministry 2025 data on the incidence of Induced Abortions and the Severity of Abortion-related Complications in Kenya here