Historic ruling offers pro-choice hope

A social activist holds placards calling for legal abortion during a campaign in 2016. Bangkok Post photo

This is historic. This is final. Abortion is no longer illegal in Thailand. Women and girls now can end pregnancies without risking arrest, imprisonment, and even death, thanks to the Constitutional Court's ruling on Wednesday.

Of course, there is still much more work to be done so women and girls can exercise their rights over their bodies without facing moral condemnation. But after decades of fruitless efforts to amend the draconic anti-abortion law, this is time to celebrate.

Feb 19, 2020 is a historic date for reproductive rights in Thailand. After more than a year of deliberations, the Constitutional Court has ruled that the anti-abortion law is unconstitutional.

Under Section 301 of the Criminal Code which deals with abortion, women who seek an abortion face up to three years in prison and a fine of up to 60,000 baht, or both.

The Constitutional Court ruled that Section 301 violates Sections 27 and 28 of the charter which enshrine gender equality and equal rights over one's freedoms and bodies while prohibiting discrimination based on gender. Consequently, it must be nullified within 360 days from the ruling.

As for Section 305 of the anti-abortion law which allows legal abortion when the pregnancy involves rape or endangers a mother's physical health, the court ruled that it does not violate the charter.

Although abortion will be no longer be a crime under the ruling, the Constitutional Court ordered the amendment of both Sections 301 and 305 to catch up with the country's current realities.

According to the National Health Security Office, over 300,000 women have sought medical treatment at state hospitals for incomplete abortions over the past decade. Nearly 100,000 of them suffered severe complications and infections. More than 20 of them have died each year.

The tragedies continue even though safe and legal abortion pills have been available around the world for over a decade.

The landmark ruling started with the arrest of Dr Srisamai Chuachart in Hua Hin, Prachuap Khiri Khan, in 2018. She was charged with performing illegal abortions after garbage collectors found four human foetuses in trash bags.

Dr Srisamai denied the charges. The Medical Council's rules and regulations on abortion allow physicians to perform an abortion when the pregnancy endangers a mother's physical and mental health. The law also allows girls under 15 to have an abortion; it does not matter if the pregnancy is from rape or consensual sex.

The law was on her side, yet the police insisted on arresting and taking her to court. Dr Srisamai then petitioned the charter court to decide whether or not the abortion law was unconstitutional and needed amendment.

In a country with a deeply-held religious belief that abortion is sinful, Dr Srisamai is among a small number of physicians willing to help women and girls with unplanned pregnancies.

The arrest shook pro-choice doctors hard. What happened to her could happen to them with the police insisting on using the draconian Section 301 that criminalises abortion to punish both patients and doctors and disregarding other laws that allow legal abortion.

Dr Srisamai believes the petition to the Constitution Court to revoke Section 301 is necessary, not only to protect pro-choice physicians but also women and girls who need medical help.

"The landmark Constitutional Court ruling is cause for celebration. But our work for reproductive rights in Thailand is far from over," said Kritaya Archavanitkul, a reproductive health activist and associate professor in demography.

For starters, the question still hangs in the air over who has the power to amend the abortion law. If left in the hands of the conservative bureaucracy, it will be easy for religious fundamentalists to influence the amendments.

"Civil society groups must make sure we have a say in the new abortion law," she said.

The problem does not end there. Like most laws in Thailand, there is a big gap between law and actual legal enforcement.

Dr Kritaya and other safe abortion activists have learned it the hard way. Wearied by the fierce resistance from religious fundamentalists against every attempt to amend the archaic abortion law, they decided to change their strategies.

They did so by working with the Bureau of Reproductive Health, Public Health Ministry, to study the use of mifepristone and misoprostol for safe abortion. The two drugs have been endorsed by the World Health Organisation for early pregnancy termination for over a decade. Although they are legally available in more than 60 countries around the world, Thailand refuses to register them on religious grounds.

They also started working with state hospitals to provide counselling and safe and legal abortion under the Medical Council's guidelines to pave the way for the registration of mifepristone and misoprostol as safe and legal abortion pills.

They also worked with pro-choice physicians to set up the Referral System for Safe Abortion (RSA) to provide safe and legal abortions under the abortion pill study project. There are now more than 100 RSA doctors in state hospitals across the country. Dr Srisamai is one of them.

Now that abortion is no longer a crime, what's next on the agenda for reproductive rights activists?

"At least one hospital in each province to offer safe abortion services. The registration of abortion pills. And more campaigns to let people know that they can get safe and legal abortion services for free under universal healthcare coverage," said Dr Kritaya.

The biggest obstacle to women's reproductive rights, however, remains the same as it always has -- the religious belief that abortion is a sin.

It is why a majority of physicians and nurses still refuse to give abortions despite the green light from the Medical Council, why crude, painful methods are still used to treat complications from incomplete abortions to punish "bad" women, why women and girls dare not seek help out of shame, why schools continue to kick pregnant teens out, and why the government offers them zero help. It is also why many women and girls carry lifelong guilt for choosing abortion.

"It's easier to fix the law than to fix the deep-rooted cultural beliefs that perpetuate violence against women," said Dr Kritaya, sighing.

Buddhism teaches compassion. Why then only a barrage of condemnation from most Buddhist monks? Is it because of Buddhist teachings or the intense patriarchy in the clergy?

Be kind. Avoid being judgemental. Sins, after all, are individual responsibility. Our duty is to help the distressed. This is the kindest response I got from the kindest monks.

As sympathetic as it is, should we be satisfied with the answer that still sees abortion as a sin while failing to address our social structure that inflicts so much violence on women?

While reproductive rights activists continue to expose patriarchy, the person who showed me the best way to deal with "sin" and moral guilt from abortion is an ordinary woman who experienced an unplanned pregnancy -- my hairdresser. Like most Thai Buddhists, she is a fierce believer in rebirth.

"I was not ready at the time," she told me. "So I asked the spirit inside my womb to wait just a little while longer until I was ready so that I can give my best when the baby comes back. It's just a matter of waiting for the right time for both of us."

We would live in a much kinder world if monks, do-gooder Buddhists, and conservative lawmakers listened to her wise words.