10. Like the US, South Africa also rejects fetal personhood and permits abortion, but this result rests upon a framework of equality rather than privacy/liberty and flows from the idea that conferring personhood upon the fetus would undermine the status of women. Prior to 1975, abortion was prohibited under South African common law unless necessary to save the woman’s life. In 1975, the South African government enacted the Abortion and Sterilization Act of 1975, which attempted to medicalise the abortion decision by permitting abortion when a physician certified that the pregnancy endangered the woman’s life, posed a serious threat to her physical or mental health, or presented a serious chance that the child would be irreparably handicapped. In theory, this law liberalized access to abortion, but in practice, access to abortion was effectively determined by the woman’s class and racial background: only 40 per cent of applications for abortion were approved pursuant to this law, generally for privileged white women on psychiatric grounds.
11. The status of abortion in South Africa changed dramatically after the end of apartheid. The new South African Constitution enshrined a general commitment to human rights and equality. Moreover, although the Constitution did not specifically legalise abortion, Sections 12(2)(a) and (b) protected the right of everyone ‘to make decisions concerning reproduction’ and ‘to security in and control over their body.’ Consistent with these provisions, South Africa enacted the Choice of Termination of Pregnancy Act (‘COTOPA’) in 1996. The preamble to the COTOPA sets forth the philosophical principles underlying the act, which include ‘the values of human dignity, the achievement of equality, security of the person, non-racialism and non-sexism, and the advancement of human rights and freedoms which underlie a democratic South Africa,’ as well as the determination that ‘the Constitution protects the right of persons to make decisions concerning reproduction and to security in and control over their bodies.’ Under COTOPA, abortion may be performed upon the woman’s request during the first 12 weeks of pregnancy. Abortion is also permitted from the 13th to the 20th week if a medical practitioner believes that pregnancy would pose a risk of injury to the woman’s physical or mental health, the fetus would suffer from a severe abnormality, the pregnancy resulted from rape or incest, or continued pregnancy would significantly affect the social or economic circumstances of the woman. After the 20th week, abortion is permitted only if a medical practitioner, in consultation with another medical practitioner or registered midwife, is of the opinion that pregnancy would endanger the woman’s life or result in a severe malformation or injury to the fetus.
12. In 1998, the Christian Lawyers Association challenged the law as unconstitutional under Section 11 of the 1996 Constitution, which ensured that ‘everyone had the right to life’ (Christian Lawyers Association of SA and Others v Minister of Health and Others (1998)). But the Transvaal Provisional Division of the High Court dismissed the challenge and upheld COTOPA, concluding that Parliament did not intend Section 11 to encompass unborn fetuses, as reading ‘everyone’ so broadly would ‘introduce a significant new class of rights-bearer’ throughout the Constitution. In addition, the Court reasoned that conferring the legal status of personhood on a fetus would impinge upon women’s constitutional rights to equality, dignity, freedom and security of the person. The Court emphasized the importance of equality in the South African Constitution, stating that it is ‘primarily and emphatically’ an egalitarian Constitution (egalitarianism), and that ‘proper regard must be had to the rights of women as enshrined in Section 9 of the Constitution (the right to equality, which includes the full and actual enjoyment of all rights and freedoms and the protection that the state may not unfairly discriminate against anyone inter alia on the grounds of sex).’
13. In 2004, the Christian Lawyer’s Association brought another challenge to COTOPA, arguing that allowing minors under the age of 18 to seek an abortion without parental consent violated the Constitution, specifically the right of every child to family care, to protection from maltreatment, to equality before the law and to equal protection under the law. But the Transvaal Provisional Division of the High Court rejected this challenge as well, ruling that COTOPA did regulate minors’ access to abortion by requiring ‘informed consent,’ and that allowing minors to give informed consent was consistent with the right of every woman to choose whether to terminate her pregnancy or not, which is protected under Sections 12(2)(a) and (b) of the South African Constitution, as well as the right to equality before the law and equal protection from unfair discrimination on the ground of age embodied in Sections 9(1) and (3) of the Constitution (Christian Lawyers Association v Minister of Health and Others (Reproductive Health Alliance as amicus curiae) (2005)).
14. Thus, South Africa affords a legal right to an abortion on grounds of equality, but this does not mean that abortion is actually available to all women as a matter of practical reality. Many women in South Africa, particularly poor women in rural areas, are not even aware of the existence of a legal right. Moreover, structural barriers and the stigma of abortion have resulted in a dearth of legal providers. Many communities, particularly among black South Africans, hold strong pro-life views, and these attitudes have discouraged medical providers, who do not want to perform abortions for fear of being shunned or rejected by the hospital or by their own communities. The lack of access to legal abortions providers has resulted in the rise of quick, illegal abortion services, which also appeal to many women because they offer abortion pills that can be taken at home, whereas legal abortions must be performed in an authorized clinic.