Zimbabwe: Concourt Overturns Ruling to Expand Legal Abortion Grounds to Include Mental Health-Related Reasons

The Constitutional Court has overturned a High Court ruling that sought to expand Zimbabwe’s restrictive abortion laws to recognise severe mental health conditions as grounds for lawful termination of pregnancy.

In a judgment delivered on October 14, 2026, the apex court declined to confirm the High Court’s declaration that sections 4(a) and 2(1) of the Termination of Pregnancy Act were unconstitutional, setting aside the ruling after finding that the lower court had failed to follow the full legal test required before striking down legislation.

The decision leaves intact the existing statutory provisions, which the applicants had challenged for excluding mental health as a specific ground for terminating a pregnancy and failing to recognise certain pregnancies involving mentally impaired women under the law’s definition of “unlawful intercourse”.

The case had been brought by the Community Working Group on Health and human rights activist Nyasha Batitsa against the Health Minister, the Justice Minister, the Attorney-General and Parliament.

Writing for the Constitutional Court, Justice Bharat Patel said the High Court had made material omissions in its constitutional analysis, particularly by failing to assess whether the restrictions in the law could be justified under the Constitution.

“A finding that the impugned legislation limits a constitutional right does not, without more, render that legislation unconstitutional,” Patel said.

The judge emphasised that courts must go beyond identifying an infringement of rights and determine whether the limitation is permissible under section 86(2) of the Constitution, which allows certain restrictions where they are fair, reasonable, necessary and justifiable in an open, just and democratic society.

The High Court had declared the disputed provisions unconstitutional to the extent that they excluded mental health from the grounds for lawful termination of pregnancy and failed to include conduct prohibited under section 106 of the Mental Health Act in the definition of unlawful intercourse.

It had suspended the declarations for 18 months to allow the authorities to amend the law.

But the Constitutional Court found that the lower court had not adequately interpreted the constitutional rights at stake before deciding that the legislation violated them.

“The omission of a structured justification analysis is significant and critical,” Patel said, adding that the lower court could not move directly from finding an infringement to declaring the law invalid without undertaking the separate justification inquiry.

The applicants had argued that physical and mental health were inseparable components of overall health and that excluding mental health from the statutory grounds for abortion exposed women with severe psychiatric conditions to potentially devastating consequences.

Their case relied on medical and expert evidence highlighting the risks faced by women forced to continue pregnancies despite serious mental health conditions, including suicide, post-partum psychosis and long-term psychological harm.

They also challenged the law’s treatment of pregnancies involving women and girls with mental disabilities, arguing that the failure to recognise sexual conduct prohibited under section 106 of the Mental Health Act denied them access to lawful termination and perpetuated discrimination against a vulnerable group.

The applicants maintained that the restrictions infringed constitutional protections relating to life, human dignity, equality and access to healthcare.

The government opposed the challenge, arguing that the existing law was sufficiently broad to cover health conditions threatening a woman’s life and warning against adopting a blanket approach to mental health conditions, which vary considerably in severity.

Pro-life organisations that participated as friends of the court also opposed expanding the grounds for lawful abortion, arguing that the protection of unborn children and the appropriate threshold for mental health-related termination required legislative consideration.

The dispute also raised the question of whether Parliament’s decision not to expand the grounds for lawful termination could be challenged in court.

The Constitutional Court rejected the argument that parliamentary decisions were beyond judicial scrutiny, reaffirming that Parliament, like every other public institution, was bound by the Constitution.

“The conduct and decisions of Parliament, like any other exercise of public power, are subject to constitutional review by this Court,” Patel said.

The judge said the supremacy of the Constitution meant Parliament could not shield its decisions from scrutiny simply because it had debated an issue and reached a conclusion.

Patel noted that the Termination of Pregnancy Act was conceived in 1977 and promulgated in 1978, before the adoption of the current Constitution in 2013, and had not been significantly revised since its enactment.

The judge said Parliament’s constitutional obligations concerning the protection of unborn children and the circumstances in which pregnancy may be terminated were not necessarily beyond scrutiny.

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However, the court declined to review Parliament’s conduct in the present proceedings, explaining that the matter concerned confirmation of the High Court’s declaration of invalidity rather than a direct constitutional challenge to parliamentary action.

The court also dealt with an objection that the case was premature because legislative amendments were being considered. That objection fell away after the respondents indicated that the proposed amendments had been presented to the Senate but had not been approved.

The Constitutional Court stressed that its role in confirmation proceedings was not merely procedural. It had to independently examine whether the lower court had correctly declared the law unconstitutional.

“In the absence of these essential enquiries, this Court is not satisfied that the declarations of constitutional invalidity were correctly made,” Patel said.

The court accordingly declined to confirm the High Court’s declarations and set aside its judgment. It made no order as to costs.

The ruling does not amount to a substantive finding that excluding mental health from the statutory grounds for abortion is constitutionally justified. Rather, the court found that the High Court had not completed the required constitutional analysis to support its declaration of invalidity.

Read the original article on New Zimbabwe.

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