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14 Jan 1995
Theme Committee IV.
Constitutional Principle
II:
An entrenched Bill of Rights
The Abortion Rights
Action Group (ARAG) asks the Constitutional Assembly to consider the following
submissions when drawing up
the final Bill of Rights: -
1. For 23 years
ARAG has campaigned for more liberal abortion legislation, largely on the
grounds of the ill effects of the restrictive South
African Abortion and
Sterilisation Act of 1975 on women's health, while emphasising also other
results of this type of law such as
the poor quality of life of children born
unplanned and unwanted, the horrifying incidence of infanticide, the injustice
of abortion
facilities being available unequally to rich and poor women and the
need to implement an effective population programme.
Official figures
show that there were only 1 582 legal abortions done in 1993, (mainly on white
women), whereas a large proportion
of the approximate 36 000 operations for the
removal of residues of pregnancy in State Hospitals each year (mainly on black
women)
Is clearly the consequence of illegal "backstreet" abortions. These
figures exclude those women, estimated again In tens of thousands,
who Illegally
succeed in aborting but do not need hospitalisation. The high incidence of
maternal mortality and morbidity due to
illegal abortions is a public health
disgrace. While abortion Is criminalised to the extent it is by our present
Act, women will
not admit to having an abortion and figures will have to be
roughly estimated. It is clear that the existing abortion law does not
protect
women's health, does not prevent fetal death, nor does It significantly advance
any moral or ethical principle.
2. According to the UN Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW), women are
entitled to recognition
of their human rights to life, health, dignity, privacy,
equality, freedom of religion and protection against any harmful aspects
of
customary law and practice, all of which are necessary to uphold the principle
of moral autonomy and bodily integrity, and are
basic to women's reproductive
rights.
3. The Right to Life clause in the Bill of Rights should be
explicit in stating that the unviable fetus is not a Juridical person.
To
regard a pregnant woman as embodying two Juridical persons as from the
fertilisation of her ovum would have ludicrous consequences.
Would a visitor to
South Africa who Is one week late with her menses be required to have one or two
visas? How would the census
be
conducted? Could a doctor Inserting an IUD
be charged with murder? Are we to start celebrating our fertilisation days
Instead of
our birthdays?
When sperm meets egg life may eventually form,
but quite often does not. When a miscarriage occurs the rites of baptism, and
legal
registration of birth and death are not performed unless the fetus is 26
weeks old. Regardless of any religious or ethical view
of what a fetus' rights
ought to be, the law Itself deals with reality not speculation.
ARAG is
aware that the country has not had the educational campaigns and debates
warranted by this issue and the related one of the
death penalty. It would
appear almost Impossible to achieve such extensive consultation within a
reasonable time, and therefore
South Africa will have to rely on its political
representatives and legal experts to draft the best possible formulations to
meet
the country's present needs.
The death penalty is about to be
considered by the Constitutional Court and presumably the abortion issue may be
next. While we do
not doubt that If the Court examines the interpretations and
decisions reached by western constitutional courts, they will reach
similar
conclusions, ARAG's view is that abortion is a matter for Immediate legislation
because of the public health crisis caused
by the large number of illegal,
"backstreet" abortions. Those opposed to abortion law reform may well challenge
a new Act in the
Constitutional Court, but ARAG nevertheless urges there be no
further delay in Introducing such legislation.
We do not want South
Africa to follow the litigious example of the USA. Further, as Senator Edward
M. Kennedy has stated, a Freedom
of Choice Act was badly needed in the USA to
preserve the constitutional right to abortion established over 20 years ago but
eroded
by Supreme Court rulings In the past 3 or 4 years. We here urgently need
to establish clarity both in the law and in the Bill of
Rights in order to
anchor as firmly as possible women's right to reproductive choice in controlling
their own fertility.
As the Constitutional Assembly may be aware, the
20-year Programme of Action agreed upon In September at the International
Conference
oh Population and Development, held in Cairo, includes raising the
status of women, empowering them by providing more choices In
regard to access
to education, health services, skills development and employment, and, for the
first time, calls on governments
to address unsafe abortion as a leading cause
of maternal mortality and a major public health concern. Abortion is not a
means of
family planning, but in view of the margin of failure of all
contraceptive methods, even of sterilisation, is necessary as a back-up
to any
population programme. The HSRC report No. S126 stated: no population has been
able to control fertility by reversible methods
alone - that Is without making
widespread use of sterilisation and abortion".
4. The Privacy clause In
the Bill of Rights should be expanded to include reference to freedom to make
reproductive decisions, in
particular to choose early abortion. We ask that the
authors of the new Bill of Rights be candid and open in expressing such
principles.
There has been far too much reticence, even hypocrisy in South
Africa in regard to abortion. As the late U.S. Justice Harry Blackmun,
beet
remembered for his landmark 1973 opinion in Roe v. Wade, which recognised the
fundamental constitutional right to choose abortion,
commented: "There is
another world out there, the existence of which the court, I suspect, either
chooses to ignore or fears to recognise.
Avoidance is no way to educate public
opinion for the changes anticipated in both the RDP and ANC Health Plan. We
believe that
fear of political defeat by right-wing religious fundamentalism is
exaggerated and would be successfully countered by a forthright
advocacy of
women's rights. There will be opposition from those who reject abortion. That is
their democratic right. But ARAG contends
that the new Freedom of Choice Bill
we are proposing and have in fact drafted in consultation with others, will meet
such objections.
Abortion will be a matter of choice. No one is to be
compelled either to have an abortion or to participate In abortion procedures
against their conscience.
Once the State has recognised that the right to
privacy includes the decision for abortion, it should not assume that it has
thereby
absolved itself from a continuing concern to assist in protecting the
health and well-being of the woman, especially one who Is poverty-stricken,
and
of course the health and lives of abortion service providers.
5. In
regard to the Equality clause, we trust that there will be no withholding of its
enforcement In order to accommodate customary
law or traditional tribal or
fundamentalist religious leaders who desire to retain their power to
discriminate against women on grounds
of gender or Sex. The rights of African
or Muslim women to be protected by the equality clause must not be at the mercy
of the
whim of any court. The equality clause must trump other clauses relating
to custom, culture or religion.
6. ARAG wishes the Bill of Rights to be
applicable not only vertically between the State and the individual, but
also horizontally
between individuals and companies or institutions and between
private Individuals. It is within personal relationships in the home
and the
workplace that women suffer greatly from gender oppression.
7. We record
that the Civil Rights League at a meeting on 26th February 1992 proposed
that:
a. the then CODESA be asked to appoint a Committee to inquire into
the working of the present Act on abortion;
b. women's right to
procreative choice and bodily integrity should be protected In the bill of
rights, including the following clause:
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"The human right to life shall be
recognised and respected, but this shall not exclude the right of a woman to
terminate her pregnancy
within a period to be defined by the
legislature";
c. elective abortion on Informed and counselled request
should be made legally available during the first trimester of
pregnancy.
In June 1992 at a conference held in Port Elizabeth by the
Human Rights Lobby Group for the New Constitution and attended by many
human
rights groups, a proposal was adopted that "Any right to life clause In a bill
of rights must be qualified by a proviso that
this must not be Interpreted to
deny a woman the right to choose to have an abortion”.
Finally
we enclose a copy of a Declaration to Raise the Status of Women Issued by the
Black Sash in Nov. 1993 which echoes, in para.
3., their April 1993 National
Conference resolution supporting a Freedom of Choice Bill on
abortion.
D. I. CLEMINSHAW
for: ABORTION RIGHTS ACTION
GROUP
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