Introduction
Colonial legacy has left significant marks on the society of numerous nations. One of the most prevalent colonial laws was the Offences Against the Person Act of 1861, passed by the United Kingdom Parliament and adopted by colonies worldwide in the following years. This paper will examine the impact of the legislation on Jamaica, West Indies in the social context of abortion by tracing the colonial history and outlining both past and present abortion laws on the island under the influences of colonialism. Jamaica which is generally perceived to be a liberal society remains a highly conservative nation with strong religious opposition to abortion. The issue is further complicated by abortions being legally restricted by a centuries-old law, but de facto practiced, albeit in a context of significant fear and inequality. This paper will seek to answer the research questions, why is the abortion law in Jamaica so restrictive? Why are abortions often not performed even in cases where they would be permitted and what is the sociopolitical context to this scenario? The second half of the paper, to be completed next semester, will study efforts to change the abortion laws in Jamaica and the modern opposition to those efforts. There is a possibility that in naming those who are opposed to expanding abortion access in Jamaica, I will also explore the colonial origins of the opposition to abortion access.
Importance of the Topic
Exploring postcolonial legal frameworks can identify shortcomings and provide a scholarly foundation for nations influenced by the Offences Against the Person Act to begin shifting away from such discriminatory and restrictive practices. The topic deals primarily with postcolonialism, a phenomenon that combats colonialism’s residual social and legislative effects on former colonies. The postcolonial theory is critical to explore in a wide variety of contexts in the modern world when societies and cultures struggle with many of the postcolonial influences, including systemic racism, inequality, and appropriation. However, recent years have seen more cultures ascertain their identity by dropping the shackles of colonial influences through this postcolonial exploration.[1] Access to abortion is a fundamental human right, as recognized by the United Nations. The 1994 International Conference on Population and Development (ICPD) was the first international official consensus wherein states recognized reproductive rights, including abortion. Governments are strongly encouraged to commit to women’s health by addressing unsafe abortion, ensuring legal access to abortion, and providing post-abortion care.[2] Most recently, the UN Human Rights Committee affirmed that access to abortion and prevention of maternal mortality (closely associated with abortion as discussed in the next sections) are fundamental human rights.[3] However, violations affect primarily women who are much disadvantaged in developing postcolonial nations such as Jamaica.
The Offences Against the Person Act (OAPA)
The Offences Against the Person Act (OAPA) was written and passed by the UK parliament in 1861. As its title indicates, the bill consisted of multiple statutes that combined offenses against the person, a legalese term which meant any crime that caused direct physical harm or force applied to another human being. However, besides typical crimes such as assault and homicide, the bill reflected actions that were considered crimes at the time, such as abortion and certain sexual acts such as sodomy. Great Britain continued to rule multiple colonies in the 19th century, and British law commonly became colonial law as well. Jamaica, which was a British colony until 1962, adopted OAPA on January 1st, 1864.[4]
Britain had one of the most influential legislative frameworks, not just on its colonies. However, in the colonial aspect, legislation was often used to create systems of domination and control. Areas of reproduction controlled by OAPA were reinforced through legislation as an element of colonial power relations. Jamaica had been a British colony from 1655 to 1962. For the majority of its early rule, the colony consisted of a small white population overseeing the native population and African slaves left behind by the Spanish, labor used to harvest natural resources including the valuable sugar. Due to this state, English values and law were essentially imposed on Jamaica without debate.
Britain instituted restrictive abortion practices partly to protect the supply of cheap and exploitative labor. OAPA was introduced 30 years after the abolition of slavery in the British Commonwealth. However, millions of Africans were still used for cheap labor, abused, and had no rights in Jamaica. Suddenly, a fetus was more valuable than millions of enslaved Africans who were viewed as subjects of abuse for decades and had no rights. The legislation lacked moral authority, targeted the poor former slave populations to ensure the availability of supply of cheap labor. The irony that remains is that African women during days of slavery claimed their reproductive freedom through abortions and infanticide to prevent their children from being born into slavery. Evidence suggests that under slavery and in years after emancipation, women would use a variety of techniques to prevent the continuation or realization of a pregnancy. These induced abortions demonstrate that women were active elements of resistance and highlight the desire to have control over their bodies. OAPA essentially sought to delegitimize and continues to deny that right to the descendants of slaves in Jamaica today.[5]
Policies aimed at controlling reproductive rights at the time were purposefully crafted to benefit population growth. In the latter half of the 19th century, Western nations, including Britain, we’re shifting from societies of high birth rates and high death rates to low birth rates but still high death rates. There was a fundamental shift in the basic family structure. The declining birth rate was seen as the biggest problem, becoming the basis of the slogan at the time, “advance and populate, or perish.” Female reproduction became a matter of national obsession. However, there was an inherent relationship between sexism and racism, as women, reproducers of the race were either always encouraged (white women) or discouraged (indigenous and minority women) to reproduce. Measures aimed at regulating abortion in white settler colonies were associated with highly gendered and racialized rhetoric in policy that resonated throughout the British Empire.[6]
After the abolishment of slavery in the early 1800s in the British Commonwealth, Jamaicans gained suffrage. While the British maintained power, the locals began to promote nationalism and gradually form legislation. In 1943, the labor leader Alexander Bustamante won an electoral victory and established a more liberal constitution. He became premier in 1962, and that year the UK Parliament granted the island its independence. The OAPA had such a profound impact around the world due to British colonial rule.
Ever since adopting OAPA in 1864, Jamaica’s version of the law remains virtually unchanged. As seen in the figures below, the text regarding abortion between the original UK OAPA bill and the one adopted and still considered law in Jamaica (last amendments in 2014) are nearly identical with minor differences regarding sentencing.
One element to note is that the wording of the Jamaican OAPA legislation is vague. While it lists actions that are unlawful, it does not state what is considered lawful. Any woman attempting to self-induce abortion or any person/clinician attempting to aid her will be charged with a felony and could face life imprisonment. While it is unclear how often this penalty is applied, some high-profile cases have seen doctors being arrested. Nevertheless, the wording makes it unclear since the legislation states what is considered unlawful in the procurement of abortion, but it does indicate what is lawful. Therefore, it creates a legal limbo if the service can be provided, leaving it to the discretion of health providers to decide the risks, and creates dangers of unsafe practices.[1]
Since there is no safe and standardized practice in the country, abortions are performed by select physicians in private clinics. However, that means that able persons, can visit private health facilities with abortions being performed by clinicians in unsanitary conditions, while those unable to afford it must rely on dangerous, unofficial providers or homemade concoctions to induce miscarriage. At its foundation, the law combined with the de facto practice separates those seeking an abortion into the rich and the poor which creates a dangerous precedent since once a woman decides to have an abortion, she is likely to attempt to terminate the pregnancy at any cost. A lack of a national structure to support abortion services virtually drives the majority of the population unable to afford the procedure to underground and unsafe abortion practices.[2]
Current Status of OAPA and Abortion Rights in ‘White Settler Colonies’
First, it is viable to examine previous colonies that currently maintain a large or majority of white populations. As the following discussion will show, there are vital differences as to how OAPA impacted various colonies and the postcolonial legacy of the law in those countries depended significantly on race, making a comparison between white settler colonies and former slaves colonies relevant.
The history behind this is complex for each location but comes down to the fact that local populations were inherently destroyed, Ireland being an exception. These include Australia, Canada, Ireland, and New Zealand. All of these colonies were also heavily affected by OAPA, maintaining criminal restriction on the practice in statute law. However, despite rather liberal social attitudes, both Ireland and New Zealand maintained rather comprehensive bans on abortion (replacing the OAPA with their national laws in the late 20th century) until recently, passing decriminalization frameworks only in 2018 and 2019, respectively.[3] In Australia, abortion was decriminalized as part of section 3 of the Crimes (Abolition of Offence of Abortion) Act of 2002. While each state and territory have the right to maintain their abortion laws, all but one has fully legalized and provided accessible abortion. South Australia territory only allows abortion with two doctors signing off that the abortion is necessary to protect the life or health of the woman or the child is certain to be handicapped. In Canada, induced abortion was decriminalized in 1988, with no federal restrictions, but minor restrictions can be placed in individual provinces.[4]
The UK controlled several colonies on the African continent. As of currently, the only country out of all the colonies, and on the whole continent, to allow abortion without restrictions is South Africa. Zambia, which was also a British colony, allows abortions to preserve life, health, mental state, or for socio-economic reasons. All other countries in the region only allow abortions to save the life of a woman, in some cases, to preserve physical health.[5] Similar to other regions, scholarly literature identifies the abortion laws of African Commonwealth jurisdictions are drawn directly or indirectly from British common law, which at the time of these colonies’ independence in the 20th century was still based on the Offences Against the Person Act of 1861.[6]
Similar trends can be seen in the nations of the Caribbean Commonwealth, independent English-speaking countries that were once British colonies. Antigua and Barbuda have the strictest practices of all, with abortion only in cases of saving a woman’s life. Bahamas and Grenada allow in cases of preserving physical health. All other nations allow abortions for all of the above as well as to preserve mental health, and in cases of Barbados and St. Vincent and Grenadines, for socio-economic reasons as well. None of the Commonwealth countries in the region allow for non-restrictive, without reason abortions.[7] Scholarly research in the region once again indicates that abortion laws in the Caribbean derive from the legacy of colonial jurisprudence, not just among British colonies, but French, Spanish, and the Netherlands as well. Former British colonies operate against the background of English common law, but not all of it has been changed. The majority of the countries utilize amended versions of the OAPA, which limit abortion practices.[8]
OAPA was so influential that 11 out of 18 former African colonies, 9 out of 11 in the Pacific, and 9 out of 12 in the Caribbean still maintain some form of the law or its derivatives to govern its abortion regulations.[9] As can be seen, some previous colonies have moved towards liberalization of the legislation in the modern-day, while others such as Australia, Canada, and New Zealand are decriminalized abortion completely. It is suggested that the determining factor of a country in approaching OAPA legislation is their previous relationship with the UK as “white settler colonies.” Some countries were permitted much greater judicial and political autonomy, while others were subjected to strong control due to colonial risk. However, it is the latter that continues to uphold the legislation, largely due to patriarchal and religious influences. The persistence of OAPA to the modern-day indicates the pervasiveness of British colonial law, which positioned itself as the arbiter of reproductive morality with rippling effects on both law and culture.[10]
In general, Caribbean countries, like Jamaica, have forms of institutionalized tolerance for abortion. While the practice is illegal, governments and medical institutions are aware that it goes on in secrecy, even at official healthcare providers. The population is aware of who conducts abortions, but public discussions or information sharing about it are not permitted. The government and law enforcement generally turn a blind eye, but despite calls by physicians and human rights advocates to legalize abortions since the majority of society accepts it, lawmakers avoid placing abortion into law since it would create significant outcry from the Christian church, which has power and influence in the region. This will serve as a major sociopolitical factor contributing to the status quo of abortion law in Jamaica that legally bans it but creates a state of uncertainty around defacto physician practices, as will be discussed in a later section. Therefore, throughout the Caribbean, the status quo is that abortions are performed unofficially, but that creates numerous other issues for physicians ranging from the potential loss of license to lack of appropriate tools, medications, and insurance coverage to perform the abortion.[11]
A Situation in Need of Immediate Attention
A major social issue impacting abortion in Jamaica is the issue of bodily autonomy for women on the island. Approximately 20.4% of women between ages 15 and 19 have been forced into sexual intercourse, and combined with social conservatism and unbalanced relationships, most women, even in consensual relationships, are not in a position to insist on the use of contraceptives.[12] Studies indicate that 1% of abortions occur due to rape or incest, 6% due to health problems, but 93% of abortions, undertaken or desired, are for social reasons.[13] Jamaica maintains a dire social situation that inherently violates fundamental human rights for women and places them in a position where they have neither the power to prevent pregnancy nor terminate it.
Despite abortion being illegal due to variants of OAPA, Latin America and the Caribbean has one of the highest rates of estimated annual abortions in the world of 65 per 1000 women. In 2011, in Jamaica alone, 22,000 abortions occurred despite being illegal, but complications from abortions were the 8th leading cause of mortality, indicating that many were conducted unsafely and in potentially non-clinical settings.[14] Experts from the University of West Indies indicate that by the mid-2010s, unsafe abortion was the third leading cause of maternal death. Maternal and abortion deaths are key but sensitive indicators of the quality of healthcare in the country.[15]
The situation is detrimental due to the legal consequences and social stigma. As evident, there are no easy-to-access facilities, with up to 25% of maternal deaths due to abortions occurring at home because they never reach a hospital. There is a significant stigma with seeking and reporting an induced abortion, as well as any complications that arise with women deterring to seek timely care. The conservative culture in Jamaica strongly contributes to this stigma. Anecdotal evidence was shared in an interview by a woman who got pregnant at 16 and was forced to keep the baby because abortion was off the table. The woman noted that even in the nuances of language when the discussion occurred, the phrase was to “commit” abortion, viewed as committing a crime or grave sin.[16] Due to the lack of abortion services, there are a significant number of orphaned children, with the government operating eight children’s homes, but at an annual cost of $436 million to operate, it is unsustainable for the small island nation.[17] In other words, the social and legal situation in Jamaica has created a cycle of injustice for both women who wish to have access to abortion as well as children who are born but are then face poverty, abandonment, and abuse.
De Facto Law in Jamaica
The de facto practice ongoing in Jamaica today is largely due to the legal case in English law – Rex v. Bourne in 1938. As a background, the UK Parliament passed the Infant Life (Preservation) Act of 1929, which was largely a separate bill for the s. 58 of OAPA regarding abortion, but now made it legal to terminate the pregnancy to save the mother’s life.[1] In Rex v. Bourne, the patient was not in immediate peril, but the gynecologist terminated the pregnancy in good faith, believing otherwise, the patient would be physically and mentally affected.[2] Notably, the Abortion Act of 1967 (after Jamaican independence), legalized abortion in the United Kingdom when pregnancy is terminated by registered medical practitioners. In 2019, Parliament officially repealed The Offences Against the Person Act 1861. Meanwhile, Jamaica continues to maintain the OAPA of 1864 as its official legislation, although having been amended several times, the section on abortion has been untouched, making it illegal if persecuted fully under the national law.
As it currently stands, in Jamaica, it is a felony for anyone to perform an abortion on others or themselves using any instrument, medication or means that can cause a miscarriage as described in the language of OAPA. As far back as 1975, the Ministry of Health in the country made indications that it supports legalizing abortions in cases of rape, abuse, and incest.[3]
Under de facto law, abortions can be carried out in Jamaica, requiring the written consent of two physicians corroborating that the abortion is necessary to preserve the mother’s mental or physical health. However, despite the de facto practice, many physicians are unwilling to perform the procedure due to fear of criminal prosecution. “While ‘common law’ then seems to allow for abortion under special circumstances, this apparent middle ground remains too contentious.”[4]
Perspectives of Medical Professionals
The nature of Jamaican legislation on abortion, along with the de facto regulation, places medical professionals in a challenging position as they seek to provide safe and quality service to patients but face significant risk and scrutiny themselves. If prosecuted under current law, both the mother and the physician could face decades in prison for performing an abortion. A 2011 study by Fletcher et al. in a respected international journal Gynecology & Obstetrics conducted a survey of providers’ knowledge, opinions, and practice regarding abortions in Jamaica. The study found that there was an extremely high demand for abortions, with 94.7% of general practitioners (GPs) and 100% of gynecologists (Obs) being approached to perform an abortion. Although 50.7% of GPs and 70.6% of Obs performed abortions, 80-90% of the time, they prefer to refer women to another provider. Therefore, most participants refused to perform abortions under any circumstances, but only 25.3% cited moral or religious reasons. Most providers believed that abortions should be more accessible and performed by gynecologists who are appropriately trained for it.[5]
These results were supported by a study by Matthews et al. in 2020, which surveyed current medical students at the University of West Indies for their attitudes toward abortion. With 1404 students completing the survey, 64% had a positive attitude towards abortion, and 94% believed that abortion training should be included. However, 78.8% reported having no abortion training in their studies, and only 17.9% reported some miscarriage management training.[6]
These studies shed light significantly on the fact that doctors do not wish to perform abortions, referring patients away from the majority of the time. For approximately 75% of them, it is not a matter of religion or morality but other factors. Potentially, pledging to do no harm as physicians, given that the majority of providers receive no training, continues to be an unsafe practice, also given the lack of appropriate medication or equipment for abortions on the island. Meanwhile, despite the de facto status of the law, there are still incidents of prosecution by law enforcement. A high-profile case saw a prominent doctor arrested in Kingston for performing an abortion on a pregnant 12-year old, a case that many might argue fits the definition of benefiting the life of the mother.[7] One can draw connections between this and the Rex v. Bourne case in 1938, which established de factor abortions. The case dealt with a 15-year-old female patient in virtually similar circumstances, and the surgeon was found not guilty because he performed the abortion on reasonable grounds with the knowledge that the continuance of the pregnancy “would be to make the patient a physical and mental wreck.”[8]
A number of the high-profile case had incited public outcries, ongoing for years to make appropriate changes since a high-profile cast in 2005 when a 14-year-old girl was hospitalized and died after a botched home abortion. An unnecessary tragedy that goes on to provide anecdotal evidence to the gruesome statistics of maternal deaths in the country due to botched abortions. In 2018, a young woman in the late-20s also died due to a botched abortion, creating public outcry and inspiring legislation from Prime Minister Cuthbert-Fynn.[9]
Modern Social and Political Contexts for Jamaica
In the modern-day, Jamaica has long struggled with the debate on abortion. Strong views continue to support the outdated and highly conservative law, largely from the religious community. The conservative community of a majority Protestant country has been vocal in their opposition to abortion. One of the two primary political parties in Jamaica is the Jamaica Labour Party, which is also the current governing entity. It is a conservative party that strongly upholds family values and morals and closely associates itself with the church for political influence.[10] Jamaicans that are generally tolerable and liberal on many issues continue to largely oppose abortions, with multiple polls suggesting that between 54% and 69% believe that the law should not be changed. However, despite being opposed to abortion on demand, 67% of men and 82% of women believe that the woman, not the government, should have the final say.[11]
Despite being a tourism hub since its independence and seemingly a progressive nation, Jamaica remains a fundamentalist, Bible-oriented society in many ways. After the government’s declaration in 1975 to change the abortion stance, the policy never came to fruition as religious fundamentalists galvanized support and used moral persuasion to block legislation. Jamaica’s strong Christian base has historically played a critical role in deciding matters of public interest or those with high public scrutiny. The population is highly religious, with a rumored highest number of churches per square mile in the region.
It has become a topic of the great public divide. Polls demonstrate that a slight majority believe that no amendments should be made for abortions, even adding specifications such as in cases of rape, health concerns, or incest.[12] The law has become a discussion of political leadership and the socio-economic divide. The advocacy of public figures, journalists, and human rights advocates has led politicians such as Minister Hanna to publicly voice their opinion on amending the law. The government seems to be well-aware of the situation as proclaimed by Minister Hanna in 2004, “…abortion is still illegal in this country, and a woman’s right to choose whether or not to keep her pregnancy is in effect exercised by those who can afford a private doctor.”[13] The issue is also a socio-economic one due to the criminal risk of the procedure and general lack of specialists or equipment; an abortion can cost upward of $7,000. These are performed in small, private clinics where the population and law enforcement know that the procedure is offered de factor.[14] However, such a large sum of money is affordable to few in a developing country.
Members of the Jamaican Parliament have been bringing up the issue in committees. However, a large portion of political leaders is quiet on the matter due to the strong influence of religious organizations on the island, which operates under the guise that Jamaica is a theocracy and block any progressive laws for the modern pluralistic society that does not abide by the religious dogma. [15]Anti-choice church authorities typically dominate the media, with politics and culture. Legislators from both parties have demonstrated fear of the dominant anti-choice positions. Virtually nobody from elected officials has voiced any opinions on the matter due to fear of angering their base or not being re-elected, although Ministers of Health from both parties have submitted proposals.[16] Due to the 2018 incident discussed earlier, there is currently a bill in the Jamaican Parliament, proposed by Juliet Cuthebert-Flynn, the country’s female prime minister of the majority Labour Party which would repeal sections of OAPA and decriminalize abortions, replacing it with new legislation that would allow the procedure in case of rape and incest. In the process, she revealed that she had terminated her pregnancy as a 19-year-old young woman due to health issues.
Any reform of the OAPA law has become a ‘political football’ as noted by experts from the University of the West Indies. Historically, any proposals to reform the law, it is submitted to parliamentary committees where it is largely ignored due to unpopularity. Committees may propose to recommend some reform but use very vague and language appeasing to the church, such as continuing to prosecute abortions but under civil law instead of criminal with clearer regulations.[17] The issue of abortion is at a deadlock on the island, with progressive leaders and multiple health experts, and pro-choice groups pushing for the repeal of the law. Meanwhile, local church leaders, funded and assisted by pro-life groups from the United States, are overtaking the media and mounting political pressure on the Prime Minister and other MPs, albeit this time facing significant pushback.[18]
Upon reviewing the latest legislation by Cuthbert-Flynn, the parliamentary committee suggested that MPs vote with the “conscience” on the legalization of abortion. The committee recognized that parents should be provided with all options, such as receiving counseling, but if a woman chooses to have an abortion, the right should be respected. However, the recommendation to vote based on “conscience,” which supposedly aims to guide MPs from party lines, is also meant to appease the religious groups that strongly believe that abortion is unethical.[19] Nevertheless, it is critical progress since the Labour Party is highly conservative, and such debate on the legislation signals that Jamaican lawmakers are beginning to recognize the critical status of the issue.
Conclusion and Further Research
The Offences Against the Person Act represents the institutionalized influence of the UK’s abortion legislation during the Victorian era. While it represented punitive moral and social characteristics of the time, it effectively became law in British colonies such as Jamaica, where it remains virtually unchanged to this day in legally outlawing abortions. OAPA has been fundamental to institutionalizing anti-abortion practices in legal frameworks where it remains unchallenged due to colonialism and the religious influence of modern Jamaican society. While de facto law indicates that abortions can be performed, it creates several social division issues and safety concerns due to OAPA still being a relevant legal framework that can be utilized to charge. It is a facilitation of reproductive injustices that colonialism has created. Further research will be addressed in the second half of the paper, to be completed next semester, will study efforts to change the abortion laws in Jamaica and the modern opposition to those efforts. There is a possibility that in naming the opposition to expand abortion access in Jamaica, I will also explore the colonial origins of the opposition to abortion access.
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