Abortion Access in the U.S. and South Africa: A Comparative Analysis

By: Danielle Spitz

Edited By: Hannah Cheves and Tess Ballis

         In the U.S., the Due Process Clause of the Fourteenth Amendment constitutionally prohibits states from depriving “any person of life, liberty, or property, without due process of law” in the U.S.[1] The Court turned to this amendment in its decision on Roe v. Wade to decide that the right to privacy is “founded in the Fourteenth Amendment’s concept of personal liberty” and “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[2] As a result, Roe v. Wade set the precedent that the U.S. Constitution protects a woman’s right to choose to have an abortion. This right to privacy and its relation to abortion rights, however, is not absolute.

         The Court decided that while “the right to personal privacy includes the abortion decision,” this right is also “not unqualified and must be considered against important state interests in regulation.”[3] According to the Court, the state’s interests in matters of abortion concern the health and safety of the woman receiving an abortion. To address this issue, the Court also ruled that the “‘compelling’ point, in light of present medical knowledge, is at approximately the end of the first trimester.”[4] After this point in the pregnancy, the Court wrote, “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”[5] Although the Court in 1973 set a concrete timeline for when a woman’s abortion becomes compelling enough for state intervention, it was much less clear on other key points regarding the issue of abortion.

         The Court in Roe did not attempt to settle the dispute over when life begins, welcoming ensuing litigation that would challenge the limits of the right to privacy. A central anti-abortion argument is that life begins at conception, meaning the health and safety of a fetus is just as compelling to warrant state intrusion as that of the woman receiving an abortion.[6] Believing that life begins at conception also introduces the argument that the fetus’ fundamental right to life is protected by the Due Process Clause.[7] Following Roe, states concerned with protecting the life of the unborn sought to restrict abortion access through different provisions including mandatory waiting periods, parental consent, and spousal notice.[8] These regulations tested the balance between a woman’s right to privacy to choose whether or not to have an abortion and the unqualified nature of that right.

         The 1992 case Planned Parenthood v. Casey attempted to reconcile this balance by introducing the undue burden standard. Although the Court upheld the 1973 decision that the right to privacy encompasses the right to choose to have an abortion, it also amended the reasoning used to substantiate this decision. In the 1992 opinion written by Justices O’Connor, Kennedy, and Souter, the Court rejected “the trimester framework” adopted in Roe “as a rigid prohibition on all previability regulation aimed at the protection of fetal life.”[9] Arguing that the trimester framework “undervalues the State’s interest in potential life,”[10] a broader standard of fetal viability was adopted. Having recognized the state’s interest in potential life and the regulations that states imposed to protect it, the Court also wrote that “only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”[11] Although this undue burden standard protected a woman’s right to privacy to a certain extent, it also further legitimized the anti-abortion argument that the fetus’ fundamental right to life must be recognized in addition to a woman’s fundamental right to privacy. As a result, 31 states currently have some laws restricting access to abortion, the severity of which varies by state.[12]      

         Unlike the U.S. Constitution, the South Africa Constitution explicitly guarantees the right to privacy.[13] Due to other rights listed in the South Africa Bill of Rights, however, the right to privacy is not considered the most relevant fundamental right when it comes to the legality of abortions in the country. The right to privacy, as provided by the South Africa Constitution, protects against unsolicited home searches and seizures of individuals’ possessions.[14] This differs from the U.S. right to privacy determined in Roe, which protects against government intervention in personal and intimate decision-making, such as choosing whether or not to have an abortion.

         Just as the South Africa Constitution explicitly provides the right to privacy, it also explicitly addresses matters of reproduction. The Constitution guarantees the right to freedom and security of the person. Specifically, “everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction” and to “security in and control over their body.”[15] Furthermore, “everyone has the right to have access to health care services, including reproductive health care.”[16] Other constitutional rights relevant to abortion access include the right to human dignity[17] and the right to life.[18] The right to equality is also significant, as it protects against discrimination on the grounds of gender, sex, pregnancy, and marital status among other identity markers.[19]

         Seven months after South Africa transitioned from an apartheid government and adopted its new constitution in 1996, the federal government also passed the Choice on Termination of Pregnancy Act. The Act repealed the provisions of the Abortion and Sterilization Act of 1975, which restricted access to legal abortions only when a pregnancy could threaten a woman’s life, could cause harm to the child, or was the result of rape or incest.[20] The law also required approval from two physicians and for the procedure to be performed by a third physician.[21] This 1975 law was an attempt from the apartheid government to “reconcile concerns about high levels of illegal and unsafe abortion” with the government’s interest “in preferentially increasing birth rates among white women while lowering them among black women.”[22] Alternatively, the 1996 Act sought to establish more equitable abortion laws for all South African women by establishing abortion as a “legally codified and constitutionally underpinned right.”[23] The right to choose, therefore, is one afforded by the South Africa Constitution, which helped enable the passage of the 1996 Act.

         The preamble of the 1996 Act alludes directly to rights provided by the Constitution that made the passage of the Act possible, demonstrating the Constitution’s role in resolving the controversial question of the legality of abortions. The Act opens with recognizing that the “Constitution protects the right of persons to make decisions concerning reproduction and to security in and control over their bodies.”[24] The preamble also addresses the constitutional right to have access to health care, which includes reproductive health care and “safe conditions under which the right of choice can be exercised without fear or harm.”[25] These rights, according to the language of the Act, are essential to a democracy that values human dignity and equality.[26] However, these rights are also qualified under South African law just as the right to privacy is not absolute in the U.S.

         Similar to the rule of viability adopted in Planned Parenthood v. Casey, the 1996 Act includes certain regulations on the timing of legal abortions. A woman may receive an abortion in South Africa upon request during the first 13 weeks of her pregnancy. Abortions between weeks 13 and 20 of the pregnancy are then available, with a physician’s approval, if the pregnancy jeopardizes the health of the woman or fetus, was a result of rape or incest, or could compromise the woman’s social or economic status.[27] The 1996 Act and its included qualifications have welcomed certain challenges to the legality of abortions.

         The 1998 case Christian Lawyers’ Association v. Minister of Health brought to the Transvaal Provincial Division of the High Court of South Africa was the primary constitutional challenge to the 1996 law. The plaintiff argued that the Choice on Termination of Pregnancy Act violated the constitutional right to life of the fetus. The Court dismissed the case, deciding that constitutional rights do not apply to the unborn.[28] Furthermore, the Court ruled that a woman’s right to have an abortion is protected by several constitutional provisions, including the right to life.[29] Although the plaintiff’s case crumbled when matched with the Constitution’s explicit provisions protecting matters or reproduction, several issues still exist regarding the implementation of the 1996 Act.

         Despite the codified legality of abortion in South Africa, access to abortion is not always guaranteed for South African women. Past week 13 of pregnancy, “the country reports a widespread obstruction to access posed by the abuse of the so called right to ‘conscientious objection.’”[30] Although the Act includes a provision that makes it a crime for anyone to prevent a legal abortion or obstruct access to an abortion facility,[31] a number of practitioners still refuse to perform the procedure on the grounds of conflicting moral or religious beliefs and exercise their right to conscientious objection.[32] Research indicates that as a result of the practitioners’ abuse of conscientious objection, up to 50% of abortions in South Africa take place outside of designated health facilities.[33] Grave inconsistencies exist, therefore, between the promises made in the Choice on Termination of Pregnancy Act and the promises abandoned in the Act’s implementation.

         As evidenced by the countries’ differing constitutions, the U.S. and South Africa rely on different rights to address the issue of the legality of abortion. Whereas the South Africa Constitution includes specific and explicit provisions protecting a woman’s reproductive choices, the U.S. right to privacy is much more abstract. South African courts have addressed this difference directly, most notably in the Christian Lawyers’ Association’s second attempt to challenge the Choice on Termination of Pregnancy Act in 2004. In the High Court’s decision, which again dismissed the plaintiff’s case, Justice Mojapelo wrote it was “not necessary to resort to those general guarantees” of privacy provided by the U.S. Supreme Court because the South Africa Constitution “specifically guarantees the woman’s right ‘to bodily and psychological integrity.’”[34] These specific guarantees also made it possible for South Africa to enact federal legislation that does not exist in the U.S.

         Due to the passage of the Choice on Termination of Pregnancy Act, the legality of abortions is regulated on the federal level in South Africa. By contrast, the issue is regulated on the state level in the U.S. Localized regulations compounded with the undue burden standard established by Planned Parenthood v. Casey have paved the way for states to adopt restrictions such as 20 week abortion bans, mandatory waiting periods, and parental consent, all of which can severely restrict a woman’s access to abortion services.[35] Although federal legislation in South Africa has established a uniform policy throughout the nation, practitioners' refusals to perform abortions have created a distinct gap between the 1996 Act’s alleged guarantees and its real impact on women’s access to abortion. Therefore, despite differences between the two countries’ constitutions and legislative acts, similarities exist in their executions.

         The problems resulting from the enforcement of abortion laws in both countries are strikingly similar. Both the restrictions included in the Choice on Termination of Pregnancy Act and certain state restrictions in the U.S. can make it very difficult for a woman to receive an abortion. Moreover, the restrictions in both countries disproportionately affect women in poverty. This is most evident in the far distances that poor women must travel to receive a legal abortion. Research conducted by The Washington Post shows that women below the poverty line account for about half of the abortions in the U.S., and yet they are more likely than other women to have to drive more than one hour to reach the nearest abortion provider.[36] Additionally, these women who have to travel greater distances “are also subject to state laws that require at least two days to get a procedure,”[37] meaning two trips, and all of the costs required for two trips, are often necessary. Similarly in South Africa, the refusal of practitioners and facilities to provide abortion services on the grounds of conscientious objection disproportionately affects poor women who cannot afford to travel long distances to receive an abortion.[38] Research from the South Africa Department of Health found that only 264 of the 505 health facilities designated to provide abortion services actually provide first and second semester abortions.[39] Therefore, differences in codified law between the two nations appear to have little impact on the actual implementation of abortion laws, as both nations face very similar issues regarding access to abortion services.

         Unequal access to abortion services in South Africa sheds light on the significance of a law’s enforcement and not just the content of the law itself. Upon first glance, abortion access in South Africa does not appear to be a controversial issue due to explicit constitutional provisions protecting reproductive decision-making and a federal legislative act that legalizes abortion services. However, in practice and due to faults in the law’s implementation, promises of equal access to abortion have not been fully realized throughout South Africa. There are plenty of lessons to be learned for the implementation of similar laws in the U.S. First and foremost, a constitutional amendment explicitly guaranteeing a woman’s right to choose to have an abortion would be necessary to enable federal legislation. Furthermore, as demonstrated by the uneven enforcement of federal legislation in South Africa, a comprehensive education both for women to understand their rights and for health care workers to acknowledge those rights is crucial. To ensure accessibility for all, regardless of socioeconomic status, a government body to monitor the implementation of a federal legislative act could also see to it that abortion facilities and services were widespread and equitable. The issue of abortion access in South Africa, therefore, is a necessary reminder that a law is only as powerful as its enforcement.

notes:

1. US Constitution, Amendment XIV.

2. Roe v. Wade 410 US 113 (1973).

3. Roe v. Wade 410 US 113 (1973).

4. Roe v. Wade 410 US 113 (1973).

5. Roe v. Wade 410 US 113 (1973).

6. Molly Jong-Fast, “Life Begins at Conception (Except When That’s Inconvenient for Republicans),” New York Times, June 8, 2019,  https://www.nytimes.com/2019/06/08/opinion/sunday/abortion-life-conception.html.

7. BBC Ethics Guide, 2014: http://www.bbc.co.uk/ethics/abortion/legal/usa.shtml.

8. Planned Parenthood of Southeastern Pennsylvania v. Casey. (n.d.). Oyez. Retrieved November 24, 2020, from https://www.oyez.org/cases/1991/91-744.

9. Planned Parenthood v. Casey 505 U.S. 833 (1992).

10. Planned Parenthood v. Casey 505 U.S. 833 (1992).

11. Planned Parenthood v. Casey 505 U.S. 833 (1992).

12. Planned Parenthood Action Fund, “Is Abortion Legal in My State”: https://www.plannedparenthoodaction.org/abortion-access-tool/US.

13. South Africa Constitution, Section 14.

14. South Africa Constitution, Section 14.

15. South Africa Constitution, Section 12(2).

16. South Africa Constitution, Section 27(1a).

17. South Africa Constitution, Section 10.

18. South Africa Constitution, Section 11.

19. South Africa Constitution, Section 9 .

20. Sally Guttmacher, Farzana Kapadia, Jim Te Water Naude and Helen de Pinho, “Abortion Reform in South Africa: A Case Study in the 1996 Choice on Termination of Pregnancy Act,” Guttmacher Institute 24, issue 4, Dec. 2, 1998, https://www.guttmacher.org/journals/ipsrh/1998/12/abortion-reform-south-africa-case-study-1996-choice-termination-pregnancy-act#:~:text=Under%20the%201975%20Abortion%20and,other%20unlawful%20intercourse%2C%20such%20as.

21. Mary Favier, Jamie Greenberg, and Marion Stevens, “Safe abortion in South Africa: ‘We have wonderful laws but we don’t have people to implement those laws,’” International Journal of Gynecology & Obstetrics 143, issue S4, Oct. 30, 2018, https://obgyn.onlinelibrary.wiley.com/doi/full/10.1002/ijgo.12676.

22. Favier, Greenberg, and Stevens, “Safe abortion in South Africa.”

23. Favier, Greenberg, and Stevens, “Safe abortion in South Africa.” .

24. Choice on Termination of Pregnancy Act, 1996.

25. Choice on Termination of Pregnancy Act, 1996.

26. Choice on Termination of Pregnancy Act, 1996.

27. Choice on Termination of Pregnancy Act, 1996.

28. Christian Lawyers’ Association v. Minister of Health 11 SA 1434 (1998).

29. Christian Lawyers’ Association v. Minister of Health 11 SA 1434 (1998).

30. Satang Nabaneh Marion Stevens and Lucia Berro Pizzarossa, “Let’s call ‘conscientious objection’ by its name: Obstruction of access to care and abortion in South Africa,” Oxford Human Rights Hub, Oct. 24, 2018, http://ohrh.law.ox.ac.uk/lets-call-conscientious-objection-by-its-name-obstruction-of-access-to-care-and-abortion-in-south-africa/.

31. Choice on Termination of Pregnancy Act, 1996.

32. Stevens and Pizzarossa, “Conscientious objection.”

33. Stevens and Pizzarossa, “Conscientious objection.”

34. Christian Lawyers’ Association v. Minister of Health 10 SA 7728 (2004).

35. Planned Parenthood Action Fund, “Is Abortion Legal in My State.”

36. Dan Keating, Tim Meko, and Danielle Rindler, “Abortion access is more difficult for women in poverty,” Washington Post, July 10, 2019, https://www.washingtonpost.com/national/2019/07/10/abortion-access-is-more-difficult-women-poverty/?arc404=true.

37. Keating, Meko, and Rindler, “Abortion access.”

38. Sally Guttmacher, Farzana Kapadia, Jim Te Water Naude and Helen de Pinho, “Abortion reform.”

39. Stevens and Pizzarossa, “Conscientious objection.”.

Bibliography

BBC Ethics Guide (2014): Laws restricting abortion. http://www.bbc.co.uk/ethics/abortion/legal/usa.shtml.

Christian Lawyers’ Association v. Minister of Health 11 SA 1434 (1998).

Favier, M., Greenberg, J. and Stevens, M. “Safe abortion in South Africa: ‘We have wonderful laws but we don’t have people to implement those laws.’” International Journal of Gynecology & Obstetrics 143, issue S4 (Oct. 30, 2018): 38-44. https://obgyn.onlinelibrary.wiley.com/doi/full/10.1002/ijgo.12676.

Guttmacher, S., Kapadia, F., Te Water Naude, J. and de Pinho, H. “Abortion Reform in South Africa: A Case Study in the 1996 Choice on Termination of Pregnancy Act.”
Guttmacher Institute 24, issue 4 (Dec. 2, 1998): 191.  https://www.guttmacher.org/journals/ipsrh/1998/12/abortion-reform-south-africa-case-study-1996-choice-termination-pregnancy-act#:~:text=Under%20the%201975%20Abortion%20and,other%20unlawful%20intercourse%2C%20such%20as.

 Jong-Fast, M. “Life Begins at Conception (Except When That’s Inconvenient for Republicans).” New York Times, June 8, 2019.  https://www.nytimes.com/2019/06/08/opinion/sunday/abortion-life-conception.html.

Keating, D., Meko, T. and Rindler, D. “Abortion access is more difficult for women in poverty.” Washington Post, July 10, 2019. https://www.washingtonpost.com/national/2019/07/10/abortion-access-is-more-difficult-women-poverty/?arc404=true.  

Nabaneh, S., Stevens, M. and Berro Pizzarossa, L. “Let’s call ‘conscientious objection’ by its name: Obstruction of access to care and abortion in South Africa.” Oxford Human Rights Hub, Oct. 24, 2018. http://ohrh.law.ox.ac.uk/lets-call-conscientious-objection-by-its-name-obstruction-of-access-to-care-and-abortion-in-south-africa/.

Planned Parenthood Action Fund (2020): Is Abortion Legal in My State. https://www.plannedparenthoodaction.org/abortion-access-tool/US.

Planned Parenthood of Southeastern Pennsylvania v. Casey. (n.d.). Oyez. Retrieved November 24, 2020, from https://www.oyez.org/cases/1991/91-744.

Planned Parenthood v. Casey 505 U.S. 833 (1992)

Ravitz, J. “The surprising history of abortion in the United States.” CNN, June 27, 2016. https://www.cnn.com/2016/06/23/health/abortion-history-in-united-states/index.html.

Roe v. Wade 410 US 113 (973).

South Africa Constitution.

South Africa Choice on Termination of Pregnancy Act, 1996.

US Constitution, Amendment XIV.