Women and the ‘Right to Choose’

Judy Merkel argues that the ‘right to choose’ legislation has improved women’s health but the struggle to deepen implementation remains.

Termination of Pregnancy – A reproductive right

The Abortion and Sterilisation Act of 1975 contained highly restrictive criteria that made abortion illegal or inaccessible to most South African women. Its provisions left the decision about an abortion to medical practitioners, who in turn had to apply to the state on behalf of the woman for permission to terminate a pregnancy. It afforded overwhelmingly white urban women access to safe and legal terminations but led black women to inducing abortion by themselves or using unskilled practitioners in unhygienic settings. This Act failed women on three counts: it denied them their reproductive rights; it resulted in back-street abortions – creating a major public health concern; and it denied South African women equal access to safe and legal terminations.

A study conducted by the South African Medical Research Council in 1994 found that 44,686 people were admitted with incomplete abortions each year at public health facilities. Four hundred and twenty-five women died as a result of unsafe abortions, 99% of them were black. Commonly used methods of illegal abortion were the insertion of sharp objects into the uterus such as coat hangers, knitting needles; injection of chemical solutions such as dettol, jik and soapy solutions into the uterus; taking large quantities of oral quinine, laxatives and castor oil; herbal enemas and medicines or inducement using fingers. The health problems arising from unsafe and illegal abortions were sepsis, heamorrhage, toxic shock, injuries to the cervix, kidney failure, infertility, incontinence, psychological trauma and death.

Women were dying because the apartheid system ignored the issue of unsafe abortions and actively refused to address it. The patriarchal system made use of institutions such as the state (laws & policies), the church and the schools, to control and legitimate male power and privilege. The legal system failed to protect women from the violence of back-street abortions, and instead it criminalised these women, adding to the trauma of a back-street abortion.

The Choice on Termination of Pregnancy Act 92 of 1996

The implementation of the Choice on Termination of Pregnancy Act in February 1997 heralded a new era for the reproductive rights of South African women. The Act promotes reproductive rights and extends freedom of choice by affording every woman the right to choose whether to have an early safe and legal termination of their pregnancy. This right extends to all women irrespective of age, location and socio-economic status. The Act aims to make quality abortion care services available, particularly to those from disadvantaged and rural communities.

Provisions of the Act are that a pregnancy may be terminated upon the request of a woman up to and including 12 weeks of gestation; under certain defined circumstances from the 13th to the 20th week of gestation; and in very limited circumstances, after the 20th week of pregnancy. By January 2004, seven years after the Act’s implementation a total of

344,477 safe legal terminations of pregnancy were performed in public health facilities nationally.

The impact of the Choice on Termination of Pregnancy Act

A key rationale for passing this Act was to alleviate the impact of unsafe abortion on women’s health. The incomplete abortion study commissioned by the Department of Health in 2000 found that the number of patients with high morbidity had almost halved. Most cases had no signs of infection on admission. There was a significant decline in the number of women dying as a result of complications from an abortion. The study therefore concluded that as a result of this legislation, fewer women die from unsafe abortion.

Legal challenges to the Choice on Termination of Pregnancy Act

The Choice on Termination of Pregnancy Act has been the primary focus of the constitutional debate over reproductive rights. To date there have been two important challenges brought by the Christian Lawyers Association. The first (1998) was a constitutional challenge based on the right to life of a foetus, and the second (2000) was a challenge to the constitutionality of the Act’s provisions that do not require a minor to obtain parental consent for a termination of pregnancy. Neither of these challenges has been successful.

In addition, the Africa Christian Action challenged the right of Marie Stopes to advertise safe abortions with the Advertising Authority of South Africa, which ruled in favour of Marie Stopes. Currently a case has been lodged in the Equality Court in Vereeniging by Doctors for Life against the Department of Health concerning unfair discrimination against a theatre sister who refused to assist with performing terminations.

The societal context within which the law is being implemented continues to be undermined by gender inequality and ‘anti-choice’ cultural and religious beliefs. South Africans must jealously guard the gains we have made as the power of legal systems and laws cannot be underestimated. Legal systems exert significant power in framing values and legitimacy to notions of morality. Historically, the SA legal system was used to reinforce the credibility of societal messages that it is a crime to terminate a pregnancy; it is murder; that access to safe abortion should not be seen as part of reproductive health care; that the right to a safe termination is not a human right, whilst others, (often men). made decisions about women’s lives and bodies.

Conclusion

The legislation enabling women with the ‘Right to Choose’ has been positive in dramatically decreasing the number of deaths associated with unsafe abortions. The right to choose enables women to take control of their bodies and their lives. The struggle is therefore to defend this right and to ensure that women can exercise it. Thus appropriate public health care facilities must be made available close to the townships, in rural and urban areas. This has been a big obstacle to women exercising their right.

Judy Merkel is a gender activist and works for the Reproductive Rights Alliance.