Overruling of Roe v Wade – How Does This Affect Access to Abortion in South Africa? | Legal Articles


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Overruling of Roe v Wade – How Does This Affect Access to Abortion in South Africa?

On the 24th of June 2022, The United States Supreme Court overruled Roe v. Wade, declaring that the constitutional right to abortion no longer exists.

The question is how this decision will impact abortion laws in other countries, including South Africa.

abortion rights south africa

What is Roe v. Wade?

A court case which took place in 1973 between Norma McCorvey and her state’s district attorney, Henry Wade, addressed the topic of safe access to legal abortion.

McCorvey was pregnant and unmarried at the time and wanted to terminate her pregnancy, but the law prevented her from doing so. At the time, women who wanted an abortion were only permitted to do so if the termination would save her life.

To preserve confidentiality, McCorvey’s attorneys gave her the pseudonym “Jane Roe” and proceeded to file a court case against Wade, in which they argued that the Texas abortion laws were unconstitutional. The judges in that state ruled in McCorvey’s favour, making abortion legal in Texas. In response, the state of Texas appealed directly to the US Supreme court against the ruling and McCorvey won again.

Abortions were already available in some parts of the United States at the time, but the Supreme Court’s decision meant that all states with policies that made abortion illegal, were forced to strike down these laws.

In other words, the decision made by the US Supreme Court meant that abortion was legalized across the United States.

However, this ruling was overturned almost two weeks ago, and abortion is once again illegal in the US.

How Does This Ruling Affect Access to Abortion in South Africa?

Although there should, in theory, be little to no effect on South African legislation around abortion, there is an issue of funding.

Section 27 of the South African constitution protects women’s rights to privacy and ensures the rights to abortion and states that everybody has the right to make decisions concerning reproduction, and everybody has control over their body.

Although these laws have been contested by conservative groups and political parties, they have not yet succeeded, and abortion remains legal in South Africa. However, the overruling of Roe v. Wade might encourage right-winged groups to push back against the right to abortion, as well as other issues pertaining to the LGBTQIA communities.

Additionally, a Global Gag Rule exists which allows the US government to cut funding provided to organizations and facilities which promote or perform abortions, whether the funding is used for abortions or not. In other words, funding provided to private and state-owned facilities that focus on reproductive healthcare such as family planning, may no longer receive much-needed foreign funding.

However, it’s important to note that this policy is automatically reinstated when a Republican is voted into presidency in the US and revoked when a Democrat is elected to office. Therefore, as it stands with Joe Biden as acting president of the USA, the gag rule has been revoked and will remain so until a Republican president is re-elected.

Abortion Law in South Africa – The Choice on Termination of Pregnancy Act

The Choice on Termination of Pregnancy Act is a law the regulates abortion in South Africa and it offers women the right to terminate their pregnancy without question up to the 12th week of their pregnancy.

However, in order to have an abortion between the 13th and 20th weeks of her pregnancy, a woman must demonstrate the following:

  • The pregnancy is a health risk for her, and termination will save her life
  • There is a substantial risk that the fetus will suffer from a serious mental or physical abnormality
  • The pregnancy is a result of incest or rape
  • Continuation of the pregnancy will severely affect her social and/or economic circumstances

Although the Act is progressive in theory, it does not change the practicalities faced by women in South Africa who need access to safe, legal abortion services.

Constitution vs Reality – We do not Live in an Ideal World

In an investigation into access to legal abortion services in South Africa, Bhekisisa, the Centre for Health Journalism attempted to contact listed abortion facilities to confirm that they are providing the service. Between 2020 and 2022, a total of 16 000 calls were made, of which 12 000 made to state facilities were unanswered.

Additionally, many hospitals do not offer abortions due to a lack of resources and trained healthcare professionals. Women who enquire about abortions have also reported experiencing stigma from their community and healthcare professionals when seeking abortion-related information and/or services.

Furthermore, with the South African public healthcare system under immense pressure, especially in rural areas, safe abortion services are scarce, and women must often travel far distances, spend hours waiting for the service, and are sometimes forced to go back home because they were not attended to in time.

These are just some of the factors that hinder a woman’s right to safe, legal, and accessible abortion services and the result can be life threatening. When a woman does not have access to legal facilities which provide safe abortion services, they often turn to illegal practitioners out of desperation.

In South Africa, illegal abortion practitioners are rife, and the unfortunate reality is that many women have no other choice. Backyard abortions are dangerous, unsanitary, and can cause major health risks such as permanent infertility, prolonged bleeding, and in the most heart-breaking circumstances, death.

Although the South African constitution currently protects women’s rights to safe, legal abortion, access to such services leaves much to be desired and, the issue of Roe v. Wade being overturned is a minor concern in comparison to the practical accessibility to safe termination of pregnancy in our country.

Van Deventer & Van Deventer Incorporated – Attorneys in South Africa

Our attorneys in South Africa are available to answer any questions you may have around the South African constitution, including the laws around termination of pregnancy in our country.

Feel free to contact us.

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