Limits of federal power to legalise abortion under 1999 constitution – Part 3

Scotus is in effect referring to people’s elected representatives in the states’ legislatures, and not the people’s elected representatives at the U.S. National Congress. See also Dobb v Jackson Womens Health Organisation 597 U. S. 215 (2022). It is therefore inconceivable how the U.S. Democratic presidential candidate, who is once a senator, intends to legalise the provision of abortion services in the U.S. federation through a federal legislation that seeks to remove a prohibition competently placed by the states on its people, in a matter that has no federal competence.

Federal preemption is not a power devoid of overriding constitutional constraints; and where its exercise is appropriately constrained by the national constitution, it is without a fang or a bite. See the constitutional constraints to federal preemption in the 10th amendment to the U.S. constitution, and section 4(7)(a) of the CFRN.

Federal preemption is a powerful tool in the hands of federal legislatures in a federation to ensure uniformity of laws in the federation. However, federal preemption, in the residual constitutional legislative matters of abortion legalisation or penalisation, is rendered completely ineffective in the face of appropriate constitutional constraints as seen in section 4(7)(a) of the CFRN.

The Criminal Code Act of Nigeria separately criminalises the fundamental right to liberty and privacy of the pregnant mother to procure her own elective miscarriage, as well as the ordinary statutory right of any person that is involved in the provision of elective abortion services, irrespective of pregnancy or gestational age. Section 2(1&2) of the Nigerian CCA is inconsistent with the CFRN, as the CCA, enacted or deemed to have been enacted by the federal legislatures, purports to make ordinary laws for the states of the federation of Nigeria and the parts thereof, on residual constitutional legislative matters exclusively dispatched to the states of the federation.

The federal legislatures only have the constitutional legislative power to make criminal laws for the federation or any part thereof on matters included in the Exclusive Legislative List. The federal legislatures, as equally obtained in some order federations, also have the constitutional legislative power to make ordinary laws for the federation, but not for the parts thereof, on matters in the Concurrent Legislative List.

Coincidentally, in Nigeria, constitutional legislative matters in the Concurrent Legislative List are not substantively assigned to the legislatures for criminalisation. See Item 68 of Part I, and paragraph 2a of Part III, of the Second Schedule to the CFRN.
Federal legalisation or decriminalisation of abortion in the absence of federal residual competences. 

The Nigerian federal legislatures, by virtue of section 299 of the CFRN, enjoy substantive constitutional legislative powers on all the exclusive, concurrent and residual constitutional legislative matters, with the obvious exception of the guaranteed fundamental constitutional rights conferred on persons and citizens to the exclusion of the legislatures, in their Federal Capital Territory.

However, the constitutional legislative powers and matters available to the federal legislatures for a federation, as opposed to their powers and matters for the Federal Capital Territory, may be exclusive, concurrent or residual, for federations with federal residual matter competences (in which case the residual federal criminal laws are equally criminal laws for the federation); or exclusive and concurrent only, for federations with states residual matter competences (as seen in section 4(7)(a) and the 10th amendment of the national constitutions of the Nigeria and USA respectively), and in which case, any residual federal criminal law, is not a criminal law for the federation, but a criminal law for the Federal Capital Territory only. 

Thus federal Criminal Code Acts mostly engage in amalgamations in one federal criminal Act, viz the criminal Act for the federation, criminal Act for the federation or any part thereof, and criminal Act for the Federal Capital Territory. Abortion provisions in the federal criminal Act are offences against the Federal Capital Territory, and are neither offences against the federation, nor offences against the federation or any part thereof. Every provision of the federal criminal Act therefore has to be assessed in the light of its own constitutional legislative competence and application.

The Criminal Code Act in its amalgamations (as an Act for the federation, Act for the federation or any part thereof, and Act for the Federal Capital Territory), and the states’ Criminal Code Laws (CCLs), usually criminalise the mother’s procurement of own miscarriage, as well as the provider’s provision of elective abortion services to the pregnant mothers. This does not in any way imply or suggest that, in a federation with state residual competences, a federal criminal Act or provision made on residual constitutional legislative matters, extends any inch outside the boundary of the Federal Capital Territory.

The federal abortion prohibition provision in the CCA does not derive from the enumerated matters in Parts I (which can be used for criminal limitation of rights) & II (which cannot be used for a criminal limitation, but for civil limitation of rights) of the Second Schedule to the CFRN, and therefore cannot be used to make criminal laws for the federation or any part thereof, as sanctioned by section 4(2&4a) of the CFRN. The abortion prohibition provision of the CCA, which the current federal government intends to decriminalise, derives from the unenumerated/residual matters in Part I of the Second Schedule to the CFRN upon which only a ‘state’ legislature may decriminalise for the ‘state’. 

Conclusion.
Federal legislatures, in a federation whose residual constitutional legislative matters, including abortion provision matters, are exclusively assigned to the states of the federation, cannot decriminalise or legalise abortion for the federation. Being a residual constitutional legislative matter dispatched to the competences of the states legislatures with the requisite disposal legislative action on such matter for the states, it is futile mulling the idea of legalising abortion service provisions for the federation via the Act of the federal legislatures. Because the right to provide abortion services is not a guaranteed fundamental right, it can be limited by ordinary laws of the states only. 

It is recommended that the Nigerian federal legislatures, pursuant to section 299 of the CFRN, should confine the exercise of their provincial legislative power over the residual constitutional legislative matters of abortion, strictly to the Federal Capital Territory as the 37th state of Nigeria.
Concluded.
Awkadigwe, who is a medical doctor and has a degree in law, wrote from Enugu.