A critical analysis of the efficacy of the Center for Reproductive Rights’ litigation work for producing lasting change for increase reproductive rights and access to maternal health services in Kenya.
Cover image courtesy of The Center for Reproductive Rights.
Written by Ryleigh Horst, The University of Oklahoma
The Center for Reproductive Rights works to advance reproductive rights around the world through litigation. While it is apparent that they work on important issues and have achieved many wins in the courts, their overall effectiveness remains in question. Examining the Center for Reproductive Rights’ work in Kenya reveals that litigation is not always a productive method for creating lasting systemic change — especially when it is not accompanied by further work to ensure the implementation of rulings. Similarly, viewing the organization’s work through a historical lens shows that the problems they work against are systemically embedded within society and tied to colonialism.
The Center for Reproductive Rights (CRR) is an international nonprofit organization that is based in New York. Their mission, as stated on their website, is “The Center for Reproductive Rights uses the power of law to advance reproductive rights as fundamental human rights around the world.” They deal with issue areas such as abortion, contraception, assisted reproduction, funding for reproductive healthcare, and maternal health through litigation and advocacy to protect human rights and allow people to participate and make decisions about their own bodies, regardless of gender. Since their founding in 1992, they have been fighting for equal rights in five continents and more than 60 countries. They are also the only global legal advocacy organization dedicated to reproductive rights . In Africa, they have worked in many countries in an attempt to expand access to contraception, abortion, and otherwise further reproductive rights by way of international human rights law.
Their work in Kenya is useful to critically examine the effectiveness of litigation in catalyzing change because they have done a significant amount of work in multiple areas there and there is substantial additional literature concerning reproductive rights in that country. Additionally, looking at the issues that the Center works on in a more historical lens is necessary to better understand the root causes of these problems and their relationship to colonialism. At the surface level, CRR appears to be fighting for reproductive rights and making positive change in the countries they work in, many of which are in the Global South, but their efforts may not be as effective as they make them out to be in their own publications and press releases that praise their legal wins and equate courtroom victories to meaningful change . While the Center for Reproductive Rights’ work does address important issues, they primarily focus on winning in the courtroom, which allows them to look like they are making a monumental impact on the lives of those they are litigating for, when, in reality, courts rarely have any ability to enforce their verdicts, so the effect of these decisions is limited and unlikely to lead to lasting structural change.
Historical Perspective and Broader Context
In Africa, restrictive abortion laws, as well as other reproductive rights legislation, have colonial origins. Many such laws were inherited from major colonial powers most of which have since amended their own abortion laws to reflect the importance of reproductive rights and acknowledge the dangers of unsafe abortion . However, restrictive laws still remain in many African countries, despite the fact that abortion is allowed by law in at least certain cases in every country in Africa . This demonstrates an effect of colonialism that has lingered even after countries have gained their independence.
Reproductive Rights Under Colonialism
Notably, colonial abortion laws were not necessarily based on any religious or moral arguments, which are often cited as the cause of restrictive abortion laws today. One source says that they were created to protect 19th century African women from untrained “quacks” who were responsible for the deaths of many women who came to them seeking abortions . In an unfortunate irony, because some of these laws are still in place, they have caused many modern women in countries where there are laws restricting abortions, including Kenya, to turn to untrained professionals for abortions when they are unable to access safe, legal ones, resulting in many complications and deaths.
Another explanation for colonial abortion bans is that they were created in order to prevent population decline. In the 1930s, colonial officers in Meru, Kenya condemned abortion because they saw population growth as being a sign of a prosperous empire, and local practices of female excision and abortion were getting in the way of that . With their own goals of growing their empire in mind, they worked to convince the people of Meru that abortion was an issue. Initiation into womanhood was a very important process for girls in Meru, so if girls became pregnant beforehand, they sought out abortions to avoid the grave dangers that they believed would occur otherwise . Because of the significance of these practices, girls who became pregnant tried to keep their abortions secret in order to avoid the social consequences. These were not only important cultural practices for the Meru, pre-initiation pregnancies also invoked fear in other cultural groups in Kenya, such as Kikuyus, leading them to initiate girls before puberty or also seek abortions . In some circumstances, colonial efforts to stop abortions made the situation worse, leading to blackmail, bribery, and intimidation if families were found to have violated codes that had been passed . Today, lack of access to abortion or laws restricting abortion can lead to violence towards abortion providers and women who receive abortions face the threat of ostracization, which follows the historical trend of negative impacts coming from laws restricting abortions.
The Helms Amendment and the Mexico City Policy
One way that many Western countries have maintained some measure of control over many countries in the Global South in the post-colonial period is by ensuring their continued reliance on Western aid. This dependence allows Western countries to manipulate countries that they are giving aid to by threatening to remove that aid if they do not meet certain conditions. Although the United States did not have a colony in Kenya, today, they hold power over Kenya, as well as other countries, through their neocolonialist foreign aid policies. The Helms Amendment and the Mexico City Policy are two ways that the United States has done this, and these policies have a significant tie to the Center’s work in Kenya. The Helms Amendment prevents American aid to other countries from being used to pay for abortions. There is a domestic equivalent, the Hyde Amendment, but it allows for exceptions when the person seeking the abortion became pregnant as a result of rape or incest, or if their life is in danger, but the Helms Amendment does not . This dramatically reduces access to safe abortions across the world because the United States is a major contributor to women’s health programs.
The Mexico City Policy, or the global gag rule, is an extension of the Helms Amendment that further restricts aid by prohibiting American assistance to any organization that performs or provides counselling on abortion . This rule makes it more likely that women will be forced to seek out unsafe abortions as it also has the effect of reducing access to contraceptives because those are often provided by the same organizations that provide abortions. In addition, while this legislation is meant to decrease numbers of abortions, it actually leads to increased numbers because less women are able to prevent pregnancies with the use of contraceptives . The Mexico City Policy has been repealed and reinstated along party lines several times after it was put into place by President Reagan, and it has been repealed by President Biden since he took office. Advocates for reproductive rights, such as CRR, have shown support for legislation that will prevent future presidents from being able to reinstate this policy, but it has not been passed . Repealing both of these policies would lead to increased reproductive rights worldwide, and would also be one less tactic that the United States has to hold power over previously colonized countries. However, the Center for Reproductive Rights does not devote a significant amount of efforts towards getting rid of these policies.
One of the countries that the Center for Reproductive Rights has done a significant amount of work in over the years is Kenya. Maternal mortality is a major problem in Kenya that occurs at a very high rate, with approximately 590 deaths occurring for every 100,000 live births . This paper will discuss two issue areas in the context of Kenya: maternal health care and abortion. Abortion is legal in some circumstances according to Kenya’s constitution, but there are often barriers to access . Maternal health care should also be available to all women, because there have been fee waivers in place for women who are unable to afford the care they need, and in 2013, the president of Kenya issued a directive abolishing fees for all maternal health services, but hospitals lack resources to fulfill the demand . Both of these issues are closely related to maternal mortality, as many women die every year due to pregnancy and unsafe abortion related complications, and they are also important women’s rights issues.
Maternal Health Care
Maternal health services are crucial for women’s health, and if adequate care is not provided, there can also be significant broader negative impacts. The health of the family as a whole often greatly depends on the mother, and women’s economic and societal contributions can be derailed by pregnancy complications, especially when the care they receive is inadequate or nonexistent . In 2015 and 2018, the Center for Reproductive Rights won two major court cases in High Courts in Kenya that both dealt with mothers being mistreated, detained, and abused in hospitals that they had gone to in order to give birth. The examples in these cases are similar to the experiences of many women and girls who have experienced this systemic problem in Kenyan healthcare.
A study done in 2015, that uses data from 2008 Kenya Demographic and Health Surveys, shows that only 18% of women in Kenya received adequate maternal health care. Higher income and education levels were also associated with higher levels of use of maternal health services because there are barriers to access associated with those factors . These two cases show how women are discriminated against based on their gender and socioeconomic status, as well as other rights violations. While CRR won both of these cases, these victories have not yet led to significant improvements and increased accessibility to maternal health care services for many women.
In the first case, CRR filed a petition before the High Court of Kenya on behalf of two women, Millicent Awuor (Maimuna) and Margaret Onyoso Oliele. They were both detained in Pumwani Maternity Hospital, Kenya’s largest public maternity hospital, after giving birth to their children because they were unable to pay their bills in full, despite the fee waiver system that exists in Kenya for those who cannot afford to pay for their medical services . Awuor was detained for 24 days as her family worked to gather the funds needed to pay the full amount of her bill. During that time, she was subjected to very poor conditions. She did not receive post-natal care, she was mistreated by nurses, and she slept next to a flooding toilet that caused her to contract pneumonia because she gave up her bed for her newborn daughter . Oliele was detained in the hospital on two separate occasions after seeking services during different pregnancies. The first time, she was held for more than a week after she was supposed to be released five days after her Cesarean section due to an inability to pay her bill. The second time, during a later pregnancy, she was bleeding when she arrived at the hospital, but she was not given a bed and remained sitting on a bench until her condition worsened to the point where she had to be rushing into surgery. Then, she was again detained because she did not have the money to pay her bill, and nurses refused to dress her surgical wound and she was not even allowed to step outside because they were afraid she would run away. Upon her release, she had to go to a private clinic for treatment because her wound had become infected .
CRR litigated on behalf of these women because there were several rights violations involved in the horrible treatment they were subjected to in the hospital. Their main argument was:
that the arbitrary detention, abuse and mistreatment of women seeking maternal health care services and the lack of accountability mechanisms to address these abuses is in clear violation of the Constitution of Kenya and the international and regional human rights treaties that Kenya has ratified. The petition asserted that the detention of the petitioners was arbitrary, without just cause, contravened due process protections, and violated the petitioners’ rights to fundamental freedom, liberty and freedom from cruel and inhuman treatment. Further, it asserted that the abuse the petitioners experienced constituted discrimination on the basis of gender because only women require health care services for pregnancy and childbirth, and the rights violations have a disparate adverse effect on women’s health. The actions of the hospital staff also violated the petitioners’ rights to the highest attainable standard of health, life, dignity, and access to justice .
The High Court found in favor of Awuor and Oliele, and they were both paid reparations from the county government of Nairobi, which is responsible for the Pumwani Maternity Hospital. Awuor received a sum of approximately $14,000 and Oliele received approximately $4,800. The specific rights that the Courts found to be violated included the right to liberty, freedom of movement, health, dignity, the right to be free from cruel, inhumane, and degrading treatment, and the right to be free from discrimination . It is constructive that the Court found that these rights were violated, but the actions that they ordered the government to take are more important.
The Court ordered the government of Kenya to issue policies that protect patients from arbitrary detention in healthcare facilities. They also ordered the Pumwani Maternity Hospital to develop protocols for the implementation of the fee waiver system in all public hospitals, so that they could eliminate the detention of patients who are unable to pay their fees. In 2013, before the case was decided, the President Uhuru Kenyatta issued a mandate to abolish all fees for maternity services in Kenya . However, this created an influx of women who had previously been afraid that they would not be able to pay for maternity services now seeking services. More women receiving care would be a positive result, but the government did not allocate additional resources to enable hospitals to provide services for the increased number of women seeking their services, so hospitals became overwhelmed . Therefore, this directive is not sustainable, and none of the mandates that came from the High Court are without additional support from the government.
The second case that CRR won in Kenya concerning maternal health care was decided in 2018, three years after Awuor and Oliele’s case had been decided. This shows that the decisions that the Court had made, as well as the directive from the President that abolished fees for maternity service costs, were not sufficiently implemented. They fought this case on behalf of Josephine, who was physically and verbally abused by staff and was intentionally left to deliver on the floor at Bungoma County Hospital . The High Court of Bungoma gave a similar verdict to the High Court of Kenya in the previously discussed case and held that her rights had been violated under the Constitution as well as international human rights law. They ordered the government to enact policies that would monitor the quality of maternal health services . At this point, none of the directives issued in the previous case had been supported by additional resources or properly implemented because the same mistreatment of women seeking maternity services continued to occur.
Although the Center for Reproductive Rights claims that they are continuing to advocate for the full implementation of the High Court’s decision in both of these cases, there is no explanation of how they plan to do this . The president’s directive that removed fees for maternity services may have even made access to services more difficult in some areas because of how much it increased demand without also increasing supply.The victories that CRR achieved in the Courts are not insignificant, but they are also not as monumental as they seem because they were not met with responses that put the Court’s verdicts into action.
Another issue that the Center for Reproductive Rights focuses a lot of their work around is abortion, but more specifically increasing access to safe, legal abortions. This is a very relevant problem in Kenya because there is a high rate of unsafe abortions, which have been a major cause of increased morbidity and mortality rates for people with unwanted pregnancies. One study found that “mortality due to unsafe abortion was over 33% in Kenya” . In addition, there is a social factor involved because there is stigma surrounding abortion in Kenya, so women who seek out abortions face labelling and social isolation . CRR has done a significant amount of legislation in Kenya that is related to abortion, but another key factor that is making it more difficult for pregnant people in Kenya to obtain abortions is the Helms Amendment, which blocks American aid dollars from being used to pay for abortions . Since the US is a large donor to women’s health programs, this has a dramatic impact on access to abortions, so it is ironic that CRR, as an American organization, is focusing on fighting in Kenyan courts at the same time the US is adding barriers to abortion access.
In the Constitution of Kenya, the right to abortion is guaranteed when the pregnancy threatens the health and life of the pregnant person in the opinion of a health care professional . Guidelines produced by the Ministry of Health in 2012 explained the exact circumstances in which abortion would be allowed which included interpreting “health of the mother” to mean mental health and including curriculum for training mid-level providers . This drastically increased access to safe abortions. However, in 2013, these guidelines were repealed and health care providers were ordered to stop training personnel to perform abortions and stop stocking the medicine used for medical abortions . This was done immediately after USAID sending a letter to contractors in Kenya that implied that “US-funded groups would be violating the Helms Amendment if they were present while abortion was merely being discussed.” About a quarter of the Kenyan health sector is funded by outside donors, and the United States is the largest single donor, so it makes sense that this would set off a chain reaction . CRR literature does not include this aspect of the repeal in any of their literature and rather focuses on cases they have won instead of holding the US government accountable for its role.
One such case is the one that the Center filed in 2015 on behalf of an adolescent girl, JMM. She became pregnant as a result of rape at age 14 and later died from chronic kidney disease, which she had lived with since seeking out an abortion from an unqualified provider because she was unable to access a safe abortion or the post-abortion care she needed . As previously discussed, JMM was also detained at the hospital she sought post-abortion care at because she was unable to pay her bill, which was not conducive to her recovery. Adolescent girls are at especially high risk of complications after an unsafe abortion as their reproductive organs are still developing . CRR argued that the actions of the Ministry of Health in withdrawing their guidelines and ceasing training violated the right of women and girls to: health, non-discrimination, information, consumer rights, and right to benefit from scientific progress . The High Court of Kenya ruled in their favor, determining that the Ministry of Health’s withdrawal of the Standards and Guidelines and subsequent ban on trainings for abortion providers was “arbitrary and unlawful” . This decision is important because it reaffirmed the constitutional right to abortions in Kenya. It also provides clarity for how the law should be interpreted. Despite this, many barriers to abortion remain, with the Helms Amendment being one of the most substantial.
All of this is another example of how CRR achieves victories in the Court that are often not supported by implementation. Their focus on what the Court rules ignores the work that needs to happen to put those decisions into place. In this example, they also bypass the important role that foreign aid plays in Kenyan health care, which is crucial to this discussion because it deters the government of Kenya from making abortions more accessible by essentially threatening to take away funding. The Center does address the Helms Amendment in other publications, but that is insufficient seeing as it is left out entirely in their discussion of abortion access in Kenya, which is directly threatened by Helms. Colonialism, such as that which is tied to the Helms Amendment is significant, and that is not addressed in the Center’s work.
Overall, the Center for Reproductive Rights does focus on important issues, and they have achieved significant legal wins. However, their literature does not always acknowledge the influence that Western countries, such as the Helms Amendment in the United States, have had on the restriction of rights in the first place. Also, victories in the courts cannot be equated to systemic change because court systems rarely have any power to enforce or implement their decisions, so legality is not the same as accessibility, even though CRR often makes it out to be. In order for their efforts to truly be effective, litigation must be accompanied by support for grassroots, community-led movements that are culturally aware and able to continually advocate for implementation and enforcement of legal judgments. The Center should also focus more of its efforts on eliminating the Helms Amendment and other Western factors that are exacerbating reproductive rights issues in Kenya and the rest of the Global South.
This post may have been edited by admin for clarity and length.
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“Addressing Disrespect and Abuse in Maternal Health Care Facilities in Kenya.” Center for Reproductive Rights, 22 Jan. 2021, www.reproductiverights.org/center-reproductive-rights-maternal-health-kenya/.
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“New House Bill Would Prevent Harmful Federal Restrictions That Deny Safe Abortion Services to Millions Worldwide.” Center for Reproductive Rights, 11 June 2015, www.reproductiverights.org/new-house-bill-would-prevent-harmful-federal-restrictions-that-deny-safe-abortion-services-to-millions-worldwide/.
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Brooks, Nina, et al. “USA Aid Policy and Induced Abortion in Sub-Saharan Africa: an Analysis of the Mexico City Policy.” The Lancet Global Health, vol. 7, no. 8, 2019, doi:10.1016/s2214-109x(19)30267-0.
Thomas, Lynn M. Politics of the Womb: Women, Reproduction, and the State In Kenya. E-book, Berkeley: University of California Press, 2003, https://hdl-handle-net.ezproxy.lib.ou.edu/2027/heb.02668.
Yegon, Erick Kiprotich, et al. “Understanding Abortion-Related Stigma and Incidence of Unsafe Abortion: Experiences from Community Members in Machakos and Trans Nzoia Counties Kenya.” Pan African Medical Journal, vol. 24, 2016, doi:10.11604/pamj.2016.24.258.7567.
 “Our Work.” Center for Reproductive Rights, www.reproductiverights.org/our-work/.
 “The Center Wins a Major Victory for Abortion Rights in Africa.” Center for Reproductive Rights, 12 June 2019, www.reproductiverights.org/the-center-wins-a-major-victory-for-abortion-rights-in-africa/.
 Brookman-Amissah, Eunice, and Josephine Banda Moyo. “Abortion Law Reform in Sub-Saharan Africa: No Turning Back.” Reproductive Health Matters, vol. 12, no. sup24, 2004, pp. 227–234., doi:10.1016/s0968-8080(04)24026-5.
 Thomas, Lynn M. Politics of the Womb: Women, Reproduction, and the State In Kenya. E-book, Berkeley: University of California Press, 2003, https://hdl-handle-net.ezproxy.lib.ou.edu/2027/heb.02668.
 Bassett, Laura, and Jake Naughton. “Africa: Instruments of Oppression.” Pulitzer Center, 3 Dec. 2015, pulitzercenter.org/stories/africa-instruments-oppression.
 Brooks, Nina, et al. “USA Aid Policy and Induced Abortion in Sub-Saharan Africa: an Analysis of the Mexico City Policy.” The Lancet Global Health, vol. 7, no. 8, 2019, doi:10.1016/s2214-109x(19)30267-0.
 “New House Bill Would Prevent Harmful Federal Restrictions That Deny Safe Abortion Services to Millions Worldwide.” Center for Reproductive Rights, 11 June 2015, www.reproductiverights.org/new-house-bill-would-prevent-harmful-federal-restrictions-that-deny-safe-abortion-services-to-millions-worldwide/.
 Feeman, Vickie L, and Samantha Scheller. “High Court of Kenya Declares Detention and Abuse of Women Seeking Maternal Health Services a Fundamental Rights Violation.” Center for Reproductive Rights, 2017, www.reproductiverights.org/sites/default/files/GLP_Africa_DententionCase_3.17_Web.pdf.
 Achia, Thomas N., and Lillian E. Mageto. “Individual and Contextual Determinants of Adequate Maternal Health Care Services in Kenya.” Women & Health, vol. 55, no. 2, 2015, pp. 203–226., doi:10.1080/03630242.2014.979971.
 “Addressing Disrespect and Abuse in Maternal Health Care Facilities in Kenya.” Center for Reproductive Rights, 22 Jan. 2021, www.reproductiverights.org/center-reproductive-rights-maternal-health-kenya/.
 Yegon, Erick Kiprotich, et al. “Understanding Abortion-Related Stigma and Incidence of Unsafe Abortion: Experiences from Community Members in Machakos and Trans Nzoia Counties Kenya.” Pan African Medical Journal, vol. 24, 2016, doi:10.11604/pamj.2016.24.258.7567.
 “Abortion Services in Kenya.” Center for Reproductive Rights, 22 Jan. 2021, www.reproductiverights.org/center-reproductive-rights-abortion-services-kenya/.
 “FIDA-Kenya and Others v. Attorney General and Others (High Court of Kenya).” Center for Reproductive Rights, 2015, www.reproductiverights.org/case/fida-kenya-and-others-v-attorney-general-and-others-high-court-of-kenya/.