THE OGUN STATE ABORTION LAW

JOSHUA NWACHUKWU contends that the safe termination of pregnancy law raises constitutional questions On the 24 of September 2026, the Ogun State House of Assembly passed the Ogun State Safe Termination of Pregnancy Bill, 2026 and forwarded it to the Governor for assent. A critical look at Part III of the Bill, particularly Section 9 of the Law, makes one conclude that the law simply seeks to legalise abortion in Ogun State. Section 9 establishes several grounds upon which abortion can be sought, depending on the stage of gestation and the circumstances of the pregnancy. In summary, the Law provides as follows: First, within the first 12 weeks of gestation, a woman may obtain an abortion after counselling, without need to establish any specific medical or other justification. Second, between 12 and 24 weeks of gestation, abortion may be gotten where the pregnancy poses a risk to the woman’s physical or mental health, where there is a risk of foetal abnormality, and, within 18 weeks from conception, if the pregnancy is as a result of rape, incest or other criminal sexual offences. Third, beyond these periods and at any stage of gestation, the Law permits abortion including where the pregnancy endangers the woman’s life, where the foetus has a condition incompatible with life, or where the pregnancy poses significant mental health risk or poses a risk of mother-to-child transmission of any life-threatening condition. Taken together, these provisions create a framework under which abortion may be permitted for a broad range of reasons, beyond saving a woman’s life. At this point, it is important to note that the law allows women from age 10 to have an abortion. Although girls under 18 are required, under section 12(2) to have parental, guardian or in loco parentis consent, while adults obviously can consent for themselves. With regard to married adults, one is forced to question, what is the interest, right or duty of a husband if the wife wants to abort a child and he doesn’t consent, or he wants an abortion and she refuses? These questions are important, but the more fundamental constitutional difficulty lies elsewhere: the conflict between this and the existing criminal law governing abortion in Southern Nigeria. Ogun State is in Southern Nigeria, where the Criminal Code framework applies. The relevant provisions of the Criminal Code, particularly Sections 228–230, criminalise various acts associated with procuring a miscarriage. Section 228 criminalises the unlawful procurement of a miscarriage, including conduct undertaken by a woman herself. Section 229 addresses the supply or procurement of substances or instruments for the purpose of unlawfully procuring a miscarriage, while Section 230 deals with certain acts performed by medical practitioners and other persons. The statutory framework therefore criminalises not only the procurement of a miscarriage but also various forms of assistance in procuring one. The precise liability and applicable penalty depend on the provision and circumstances involved. The law provides an exception under Section 297 of the Criminal Code, which protects certain surgical operations performed in good faith and with reasonable care and skill for the benefit of a person, subject to the statutory requirements. This exception does not amount to a general authorisation of abortion on demand as envisaged by the Ogun State Law. Furthermore, Section 309 provides that, “when a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the person who did or omitted to do such acts is deemed to have killed the child.” Section 328 provides that “any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, she would be deemed to have unlawfully killed the child, is guilty of a felony, and is liable to imprisonment for life. These sections of the Criminal Code Act are exactly the same in the Criminal Code Law of Ogun State. That means in Ogun State, abortion is currently illegal and section 20 of the Ogun State Safe Termination of Pregnancy Bill, which seeks to invalidate any law that contravenes the bill is also not a cure, based on the Supreme Court Judgment in Udeogu v FRN. In Udeogu and FRN, the Supreme Court frowns at legislations, using phrases like “any other law”, or “any other law to the contrary”, when the law which the new bill seeks to override is not even defined. With regard to the status of abortion in Nigeria, several judicial and professional disciplinary proceedings have definitely stated what it is. In the article “Is Abortion Criminalized in Nigeria? A Critical Examination of the Nigerian Legal Framework,” Abdulqayum Kehinde Yunu discussed authorities that addressed the criminal consequences of unlawful abortion and the interpretation of the relevant criminal code provisions. In Medical and Dental Practitioners Disciplinary Tribunal v. Dr. F.A., the tribunal removed a doctor from practice for performing abortions outside life-saving exceptions, defining abortion as “unlawful termination of pregnancy via medical or surgical means,” culpable under S.228 regardless of consent. In State v. Ifeanyichukwu, the court held that herbal concoctions resulting in fetal death constituted miscarriage under S.228, sentencing the defendant to 10 years’ imprisonment, thereby including traditional methods alongside clinical procedures such as D&C. The Supreme Court in A.G. Lagos v. Egun, clarified that abortion means “any deliberate interference with normal pregnancy processes to end fetal life,” unlawful without S.297 good faith, rejecting therapeutic expansions absent statutory amendment This is the law in Nigeria and a state cannot, declare a procedure lawful where a federal law has made that procedure illegal and when such happens, Section 4 (5) of the Constitution will apply Section 4(5) provides that, “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall, to the extent of the inconsistency, be void.” The provision establishes a clear constitutional rule: where a valid federal law and a state law conflict, the federal law prevails to the extent of the inconsistency. This is normally referred to as the Doctrine of Covering the Field. In Attorney-General of Ogun State v. Attorney-General of the Federation, the Supreme Court clarified that where both the National Assembly and a State Assembly make laws on the same matter (especially under the Concurrent List), and the federal law is valid and comprehensive, the state law becomes void if it conflicts. Fatayi-Williams, JSC stated; “If both federal and state laws exist on the same issue, the state law must give way if the federal law has fully covered the area.” and Kayode Eso, JSC, provided a concise definition as follows: “Covering the field” simply means once the federal law legislates fully on a matter, any conflicting state law is of no effect.” Based on the above it is not in doubt that the Ogun State Safe Termination of Pregnancy Law, 2026, raises a serious constitutional question. The issue is not simply whether abortion should be legalised as a matter of public policy. It is whether the Ogun State House of Assembly possesses the constitutional authority to create exceptions to the applicable criminal law in the manner contemplated by the Law. In my humble opinion, they don’t. One is forced to wonder if the Ogun State House of Assembly sought the view of the Attorney General of the State, Oluwasina Ogungbade SAN. If they did, surely the learned silk would have highlighted the unconstitutionality and futility of their action. Nwachukwu writes from Lagos