Reproductive rights in SA streets ahead
TOUR CONSTITUTION GUARANTEES THAT WOMEN HAVE BODILY AUTONOMY
he comparison between SA’s legal dispensation on abortion and that which the US supreme court has inaugurated through its recent decision to overturn the historic Roe vs Wade judgment could not be more stark.
The judgment abolished the 50-year-old federal right to abortion. It devolved lawmaking on the issue to individual states, many of which, under Republican Party control, have already banned abortion, or plan to ban it, even when the pregnancy is the result of incest or rape.
At the stroke of a pen of the conservative majority of the judges, American women have been deprived of their personal liberty and their reproductive rights, criminalising the attempt to have an abortion and those assisting them. There are fears that there will be a further erosion of civil liberties by this same conservative bench and that it will remove other cherished rights such as the right to same-sex marriages.
In contrast, SA has one of the most liberal abortion laws in the world, underpinned by clauses in the constitution. Clause 12 (2) says everyone “has the right to bodily and psychological integrity which includes the right a) to make decisions concerning reproduction and b) to security in and control over their body”.
Clause 27 (a) expands on this right by ruling that “everyone has the right of access to healthcare services, including reproductive healthcare” which makes abortion free at government hospitals. The Choice on Termination of Pregnancy Act allows for pregnancy to be terminated during the first 12 weeks of gestation, on demand and without the need to give reasons. Beyond this period, conditions are imposed, but abortion is possible even after the 20th week in clearly defined, extreme circumstances.
This explicit right to abortion provides strong protection to women, as a change to the constitution requires a difficult-toachieve two-thirds majority in the National Assembly.
The basis for a woman’s right to abortion under the Roe vs Wade judgment were the constitutionally enshrined rights to privacy and personal liberty, which the US supreme court judges interpreted in a particular way. This decision was made possible because the balance in the court between conservative and liberal judges was overturned by the appointment of three conservative judges by former president Donald Trump and confirmed by the Republican-controlled Senate. The judges hold their positions for life or until they retire, which means American society is in thrall to a particular ideology despite any political trends to the contrary.
SA’s system of appointing judges, while not perfect and in need of improvement, does provide some protection against politically motivated judicial appointments. The judiciary has for over 20 years been independent, robust and politically untainted, as evidenced by the number of judgments against the ANCcontrolled government and even former president Jacob Zuma.
The Judicial Service Commission (JSC), which includes representatives of political parties, appoints high court judges while the president appoints the chief justice and the deputy after consultation with the JSC and leaders of political parties represented in the National Assembly. The president and deputy president of the Supreme Court of Appeal are appointed by the president after consultations with the JSC. The other nine judges of the Constitutional Court are appointed by the president from a list prepared by the JSC after it has conducted interviews.
The 23-member JSC — 10 of whom are politicians — therefore acts as a limitation on the president’s power. But the system is not foolproof against political manipulation as it largely depends on the composition of the JSC, the membership of which is governed by the constitution. The recent debacle of the JSC interviews of candidates for the chief justice position was a warning signal of this interference at play.
Several suggestions have been made to improve the functioning of the JSC, such as changing its composition to include retired judges, reducing the number of politicians, having a code of conduct for commissioners and laying down clear criteria and objectives against which candidates should be evaluated.
SA has huge problems of poverty and unemployment among many others, but its constitution and the rights it ensures its citizens is something to be proud of.