The Constitutional right to choice, bodily integrity and abortion: The uproar post Roe v. Wade – legal or moral?

The Constitutional right to choice, bodily integrity and abortion:

The uproar post Roe v. Wade – legal or moral?

Introduction

Various stakeholders, political influencers, and US citizens have raised their views on the topic which has caused the recent uproar in the United Stated of America (“USA”) – the overturning of Roe v. Wade by the Supreme Court, in which the protection of women’s reproductive rights in the USA Constitutional sense, was tested. This decision by the USA Supreme Court has had a worldwide impact and has sparked heated debates around the Constitutional right of women to make their own decision to have abortions v the “right” of the unborn foetus.

The overturning of Roe v. Wade in the US

The USA Supreme Court has voted to strike down the landmark case Roe v. Wade in an initial draft majority opinion. In 1973 the Supreme Court recognized that the right to abortion is a fundamental liberty protected by the Fourteenth Amendment of the Constitution of the USA and that every woman should be guaranteed the right to make personal decisions about family and childbearing. The overturning of the case has sparked quite the uproar as it repudiated the 1973 decision that guaranteed federal constitutional protection of abortion rights and the subsequent 1992 decision – Planned Parenthood v. Casey – that maintained the right.

Profound moral issues faced by all

Abortion presents a profound moral issue on which many citizens of any country, no matter how liberal or conservative the general Population is, hold sharply conflicting views. On the one spectrum some believe that a human person comes into being at conception and that an abortion puts an end to an innocent life. On the other end of the spectrum, people believe that any regulation of abortion undoubtedly invades a woman’s right to control her own body and prevents women from achieving full equality. In between, some believes that abortions should be allowed in only certain and specific instances, but not all, and accordingly hold a variety of views about the restrictions that should be imposed or not.

The right to abortion in South Africa:

Section 12(2) of the Constitution of the Republic of South Africa 1996 (“1996 Constitution”) explicitly provides the right to bodily and psychological integrity, which includes the right to – make decisions concerning reproduction, and to the security and control over one’s body. Various other sections such as section 15 of 1996 Constitution guarantees the right to freedom of conscience, religion, thought, belief, and opinion and it is often these rights that present itself on the two sides of the spectrum in support of freedom of choice on reproduction and the protection of life of the foetus.

Section 36 of the 1996 Constitution, the limitations clause, provides space for the constitutionally enshrined rights to be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society, based on human dignity, equality, and freedom.

The questions on the lips of the American people are however not limited to their Constitution as and how and whether the overturning of Roe. V Wade considered a reasonable and justifiable limitation of the reproductive rights of American Women. In addition, it may be asked how does it pave the way forward for all women globally, and specifically in our Country, South Africa?

The position of South African Abortion Law

In South Africa, abortions were legalised on request during the first 12 weeks of pregnancy, and under certain conditions afterwards, on 1 February 1997, with the implementation of the Choice on Termination of Pregnancy Act 92 of 1996, (the “Act”) which provided abortion on demand for a variety of cases. Although the Constitution does not expressly deal with the "right to terminate a pregnancy. O'Sullivan states that the Act gives effect to numerous constitutional rights that can be referred to together as female reproductive rights. These rights include the rights to life, privacy, bodily and psychological integrity, dignity, equality, access to information and health care, and pregnant children's rights, which affect the right to terminate a pregnancy in South Africa. This is reflected in the Preamble of the Act, where these rights are recognised as important elements in promoting reproductive rights and in extending the freedom of choice concerning early and safe termination-of-pregnancy services[1].

In terms of the Act, a woman of any age can get an abortion on request with no reasons given if she is less than 12 weeks pregnant. If she is between 13 and 20 weeks pregnant, she can get the abortion if – her own physical or mental health is at stake; the baby will have severe mental or physical abnormalities; the pregnancy is due to incest or rape, or she is of the opinion that her economic or social situation is sufficient reasons for termination of the pregnancy. If she is more than 20 weeks pregnant, she can get the abortion only if her or the foetus' life is in danger or there are likely to be serious birth defects. A woman under the age of eighteen will be advised to consult her parents, but she can decide not to inform or consult them if she so chooses. A woman who is married or in a life-partner relationship will be advised to consult her partner, but she can decide not to inform or consult him/her. An exception is that if the woman is severely mentally ill or has been unconscious for a long time, where consent of a life-partner, parent or legal guardian is required.

Roe v. Wade v. South African Abortion Law under the Constitution

South Africa’s abortion law has been in place for more than two decades, but it has not gone uncontested. The African Christian Democratic Party (“ACDP”) has tried twice, in 2007 and 2017 respectively, to roll back abortion rights using private members’ bills. At the heart of the question is to what extend does the system of female reproductive rights caters for or protects foetal interests?

In South African law, the foetus does not have a separate legal right until birth and independent survival from the mother’s body. Even this principle is not without controversy or contest! As a general principle, without evidence of a live birth, no constitutional rights vests in the foetus. It is within this framework where the tension between the right of the mother and the “interest” of the foetus becomes a competing issue, and within which the Act operates. The Act is seen as a gradual limitation of the right of the woman to terminate pregnancy, giving more interest to the foetus, as the pregnancy progresses.

The constitutional right to equality before the law, equal protection and benefit of the law also aims at protecting the right to equality as the “right to be different[2], with equal concern and respect across these differences, in an interpretation where “equality” insist on those differences not to be applied as a basis for exclusion, stigma or marginalisation of the female, who chooses to abort a foetus. The Act strives at achieving equality in that it allows for ?termination of pregnancy on choice or on request by the female herself, depending on the reasons relating to the female and her circumstances and progression of the pregnancy.

The constitutional right to dignity – acknowledgement of the value and worth of a female – is embedded in her choice to terminate pregnancy as denying a woman this choice over her body and reproductive rights, will act to strip her of her dignity, which has been confirmed as one of the most important human rights[3].

Section 12(2)(a) of the Constitution allows for the right to bodily and psychological integrity which includes the right to make decisions concerning reproduction and the right to security in and control over her body. This amounts to reproductive freedom of a female. The Namibian case of __ was highly criticised, although success in awarding damages, for the fact that the court found that women during childbirth are incapable to make informed decisions about issues such as sterilization[4].

The constitutional right to privacy should also be exercised to the exclusion of conflicting rights such as that of a particular community or group such as a religious group. These rights should be exercised by a woman without the interference of State and community norms that may be in conflict thereof. In this case, the State should not have a competing interest in the potential of human life with that of the female to choose abortion. In the Act, the State’s interest becomes more compelling as the pregnancy progresses into the third trimester and into finality, which progressively limits the choice of the female to abort the foetus, due to specific reasons. This progressive limitation of female rights are not uncommon in other jurisdictions such as the USA, where Wade v Roe found its execution.

Under the Constitution, the female also has the right to health care, which includes reproductive health care, obliging the State to take reasonable legislative and other measures to achieve realisation of those rights, depending on the available resource for such purpose.[5]

The right to life is an unqualified right and goes beyond a mere existence as a human, therefore being alive, it includes dignity, to be part of a broader community and to share in its experiences as humanity. In this regard, this right also includes the right to terminate pregnancy where such a pregnancy will threaten the right to life in the constitutional sense.

The “right or interest” of the foetus came under scrutiny in the Christians Lawyers Association case in 1998 and 2004[6]. In the 1998 case, section 11 of the Final?Constitution was considered on application by the plaintiff to strike down the Act in its entirety, based on the allegation that the word “everyone” in the Constitution includes the unborn child. It was found that a ?foetus, while?there may be?uncertainty?in?the common law?as to the extent to which the nasciturus fiction may clothe an unborn child with any legal personality, is not included in the word “everyone” as contained in?in?section 11 of ?the?Final Constitution. It therefore cannot be?construed?as including?a ??foetus?and therefore a foetus does?not enjoy?a?constitutional?right?to life and is?not?afforded?protection?by?section 11 against?the termination of the mother’s pregnancy. The court therefore refused to strike down the Act as unconstitutional.

The Act again came before the court in the 2004 case where the essence of the claim was that the provisions of the Act that allow women under the age of 18 years to choose to have their pregnancies terminated without (a) the consent of the parents or guardians, (b) consulting the parents or guardians, (c) first undergoing counselling, and (d) reflecting on their decision or decisions for a prescribed period (collectively referred to as parental consent or control). It was the plaintiff's case in essence that young women or girls below that age are not capable on their own, that is, without parental consent or control to take an informed decision whether or not to have a termination of pregnancy which serves their best interests.

In order to succeed with its claim, the plaintiff had to establish that the relevant provisions of the Act are in conflict with and affront the specified sections of the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution"). The constitutional pegs on which the plaintiff hanged its case were the following sections: 28(1)(b), 28(1)(d) and 9(1) read with section 7(1). The court could not find that the legislation is unconstitutional when it provides for what is constitutionally permissible and regulates it without affronting the Constitution. The exercise of the right to choose based on informed consent by the minor was found not to be unregulated in the Act.

Conclusion

When it comes to abortion and life, the emotive element is strongly intertwined in other Constitutional rights such as the right to privacy, to choose, religion, conscience, belief, and the right to life. It however seems that post Roe v Wade, South Africa is more advanced in the protection of a female and the “right to terminate” pregnancy under the Constitution’s various rights and protections, being balanced with the interest of the foetus.

As with all fields of law, we are sure to see more challenge and development on this front as well!

In the words of Madala J[7]:

“Some rights in the Constitution are the ideal and something to be strived for. They amount to a promise, in some cases, and an indication of what a democratic society aiming to salvage lost dignity, freedom and equality should embark upon.

?

Article written by Elmi Jonker – Candidate Legal Practitioner and Johanette Rheeder - Director

www.jrattorneys.co.za

?

[1] O'Sullivan "Reproductive Rights" 37-2; The termination of pregnancy rights and foetal interests in continued existence in South Africa: The choice on termination of pregnancy Act 92 of 1996, C Pickles, ISSN 1727-3781, PER 2012 Vol 15 no5.

[2] Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 1 SA 524 (cc) 549B.

[3] S V Makwanyane 1995 3 SA 391 (CC) 451; O’Sullivan, Reproductive Rights, 37.

[4] Pickles C "Sounding the Alarm:?Government of the Republic of Namibia v LM?and Women's Rights during Childbirth in South Africa"?PER / PELJ?2018(21)?- DOI https://dx.doi.org/10.17159/1727-3781/2018/v21i0a4303

[5] Soobramoney v Minister of Health 1998 1 SA 765 (CC)

[6] 2004 (10) BCLR 1086 (T)

[7] Soobramoney v Minister of Health 1998 1 SA 765 (CC) 779F