Picture: Supplied – Abortion rights activists rally outside the U.S. Supreme Court in Washington. In an unprecedented ruling in June this year, the Supreme Court officially struck down Roe v Wade, the writer says, eroding women’s rights in the US.
By Franaaz Khan
More than a month after the Supreme Court in the United States conservative majority took a shocking decision on the reproductive rights of women by formally ousting laws protecting abortions, the ruling continues to grip worldwide attention.
In an unprecedented ruling in June this year, the Supreme Court officially struck down Roe v Wade, the landmark Supreme Court decision of 1973 that granted women the right to an abortion. The decision leaves states to decide whether or not to allow abortions.
Unsurprisingly, the decision has caused a storm of controversy and derision that riffled even the judiciary. Democrats have lambasted the anticipated decision, though they have been unable to do anything about it. Their attempt to codify Roe’s protection into federal law failed when Democrat Joe Manchin joined the Republicans in bringing down the Women’s Health Protection Act. The Democrats have vowed to keep fighting the fight, but how they will do it is uncertain.
Almost half of the states in America will immediately move to restrict or ban abortion. About 23 states including Mississippi, the state that was at the centre of the precedent wrenching Supreme Court case have trigger bans designed to take effect once the judgment is overturned. The devastating impact that this judgment will have about the security of other settled law, including the right to same sex marriages, is daunting, to say the least.
In his concurring opinion Justice Clarence Thomas, for instance, pointed out that courts should now reconsider rulings regarding legalising gay marriages and birth control.
The sad reality is that courts in America until now have always struck a balance between the values and goals in order to safeguard a women’s life or health. Somewhat inexplicably, the Supreme Court, however, discarded that balance. It says that from the moment of fertilisation, the state can force a female to bring a pregnancy to term, even at the steepest personal and familial costs.
Among those who were quick to condemn the verdict was Michelle Obama. She penned her thoughts on social media by expressing her heartbreak for the people of her country where women will now be destined to learn the painful lesson of a time before the Roe judgment made the law of the land; a time when women risked losing their lives getting illegal abortions; a time when government denied women control over their reproductive functions. This is what the previous generation lived through and the present generation will experience once again.
A classic case of history repeating itself, not so? The judgement will have a ripple effect for a teenage girl who possibly will not be able to finish school or live the life she wants; for a mother of a nonviable pregnancy who is now forced to bring that pregnancy to term; and for healthcare workers who can no longer help without facing jail time. The future of women’s reproductive rights in America is bleak and unfortunate.
The consequences of this ruling for South Africa
On December 11, 1996, South Africa enacted the Choice on Termination of Pregnancy Act, which gives women of any age or marital status access to abortion services upon request during the first 12 weeks of pregnancy, and in certain cases, extends access to the first 20 weeks of pregnancy. If a female 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;
- She is pregnant because of incest, she is pregnant because of rape;
- She is of the personal opinion that her economic or social situation is sufficient reason for the termination of 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. This act replaced a 1975 law that severely curtailed access to abortion services by requiring a physician’s, and in some cases a magistrate’s, approval for abortion procedures. The law’s passage was a crucial advance for women, as it represented the recognition of reproductive rights by South Africa’s first democratically elected Parliament.
In that respect we can safely say that the Supreme Court’s decision in the United States will have no effect on South Africa as we have some of the most liberal abortion laws in the world. In addition, the World Health Organisation (WHO) advocates strongly for global access to safe abortions.
However, for some countries on the African continent such as Angola, Congo Brazzaville, Congo Kinshasa, Egypt, Gabon, Guinea Bissau, Madagascar, Mauritania, Sao Tome and Principe and Senegal, abortion is prohibited with no legal exception.
This judgment will be a reason not to update some of these draconian laws to which most African women are exposed. In respect of the United Nations Agenda 2030, known as the Sustainable Development Goals (SDGs), goal number three aims to ensure access to sexual and reproductive healthcare services, family planning, information and education, and the integration of reproductive health into national strategies and programmes. The commendable aims of this goal may suffer a major blow now seeing that the US is a major funder of African health programmes. All we can do is sit back and hope that this will not be the case for women on the African continent.
At this point in time, I am proud to be a South African despite the trauma that we are experiencing with our crippling economy, the disappointing actions of our President and the Phala Phala game reserve saga, the ongoing Gupta corruption fiasco and the never-ending load shedding “epidemic”. The list goes on, but we can still hold onto the reproductive rights that girls and women have in our country. We have a right to choose, and this liberty is protected by our sacred Constitution in South Africa.
Dr Franaaz Khan is Senior Lecturer in the Department of Private Law at the University of Johannesburg