The Court of Appeal on Friday overturned a landmark 2022 ruling that had affirmed abortion as a fundamental constitutional right, setting the stage for a legal battle likely to reach the Supreme Court.
The appeal centered on a 2022 case involving a teenager who sought medical care for pregnancy complications.
A doctor who examined her determined she had lost the pregnancy and provided emergency post-abortion care.
Both the teenager and the healthcare provider were subsequently acquitted by the high court.
In its 2022 decision, the high court had ruled that access to abortion was a fundamental right under Kenya’s constitution, declaring the arrest and prosecution of women and healthcare providers unconstitutional.
However, Friday’s court of appeal ruling took a sharply different stance, asserting that abortion “denies a child the right to life as guaranteed in the constitution” and is prohibited except in limited circumstances, such as when the mother’s life is at risk.
“In effect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the constitution expressly prohibits it but provides exceptions in limited circumstances where it may be permissible,” the ruling stated.
The decision highlights tensions within Kenya’s legal framework. The country’s penal code criminalizes abortion, imposing sentences of up to 14 years in prison for attempting or procuring an abortion.
However, the Kenyan constitution permits abortion if a trained healthcare worker recommends it as emergency treatment to save the life or health of the mother.
The appeal was brought by the Kenya Christian Professionals’ Forum, a faith-based organization, and the attorney general, who challenged the 2022 high court decision.
Charles Kanjama, the forum’s lawyer and former chairperson, said the court of appeal’s decision had “restored constitutional balance which had been distorted by the high court ruling.”
“That means if somebody is accused of an offense under Sections 158, 159, or 160 of the penal code, as happened in this case, they have to provide evidence to show that they were not engaged in the crime of abortion on demand,” Kanjama told The Associated Press.
The Center for Reproductive Rights, a global human rights organization, condemned Friday’s ruling as a “setback” and announced plans to appeal to the Supreme Court of Kenya “to correct this anomaly.”
The decision comes amid a public health crisis related to unsafe abortions in Kenya.
Abortion is a leading cause of maternal deaths in the country, and an estimated 792,000 induced abortions occurred between April 2023 and May 2024, according to a 2025 report jointly published by the Ministry of Health, the African Population and Health Research Center, and the Guttmacher Institute.
The case now appears headed to Kenya’s Supreme Court, where judges will have the final say on whether abortion access constitutes a constitutional right in the East African nation.
