By Joan van Dyk
In the United States, the end of national abortion rights could be closer than we think. In South Africa, laws to permit terminations don’t have to be in trouble – people struggle to get abortions anyway.
- The end of legal abortions in the United States will not jeopardise legislation in South Africa. On home soil, the right to “reproductive choice” is written into the Constitution.
- Inefficiency in the local health service is a far bigger threat to people’s ability to access a termination should they want one, experts say.
- At worst, the new fight for abortion rights in the United States could disrupt donor dollars to pro-abortion nonprofits and add grist to the local anti-abortion mill.
The highest court in the United States (US) may overturn the right to an abortion in that country, but it won’t have any bearing on South African law anytime soon – nor should it affect American financial support to the health department, experts say.
Legal scholars and activists, however, imagine two scenarios that could unfold on home soil – and they range from bad to worse.
But before we get to the scenarios, here’s some background.
Why are US abortion laws in the news?
On 2 May, a US news organisation, Politico, published a leaked draft opinion written by a conservative justice of the US Supreme Court, Samuel Alito, and backed by five of the court’s nine judges. Alito writes that the court’s 1973 ruling on a case known as Roe v. Wade was “egregiously wrong from the start”.
If the opinion is adopted officially, Americans’ right to abortion would, as almost 50 years ago, be decided entirely by the state in which they live. The Supreme Court’s support for Roe v. Wade made it possible for states’ anti-abortion policies to be struck down.
Conservative states are already gearing up to make abortions illegal.
A report from the policy research organisation Guttmacher Institute shows 12 states have written anti-abortion laws that are lying in wait for the switch to be flipped on the Roe ruling — among these Kentucky and Louisiana.
Even if some states keep the right to abortion, those clinics may become overwhelmed by people travelling there to get terminations, which would also curb access in the United States in general.
Roe vs Wade has been upheld by American courts for 49 years, but it has not resolved disagreements about abortion, who should be able to terminate their pregnancies and why.
In fact, the Institute calculates that between 1973 and 2021, states have put in place more than 1 300 different financial and logistical hurdles that make it more difficult to get an abortion.
So even though abortion is currently a national right in the country, some states have put bureaucratic measures in place that make it difficult to implement abortions on the ground, even without the type of abortion ban that undermines the Roe v. Wade ruling.
And, the pace of this crackdown has ramped up significantly over the past decade, the Guttmacher Institute argues, since most restrictions were created during this period.
What is Roe v. Wade?
The 1973 court case was based on the experience of Norma McCorvey. Pregnant and unmarried, she wanted to have an abortion, but the law prevented her from doing so. At that time, women in Texas could only end their pregnancies in life-threatening pregnancy situations in which a termination could save a pregnant woman’s life.
McCorvey’s lawyers gave her the pseudonym “Jane Roe” and filed a court case against her state’s district attorney, Henry Wade in which they argued Texas abortion laws were unconstitutional. Judges in that state ruled in McCorvey’s favour.
And when the state of Texas appealed directly to America’s highest court, McCorvey won again.
At the time of the ruling in 1973 abortions were already available in some parts of the US, but this decision meant that state policies that prevented terminations had to be struck down.
In short, the Supreme Court decision legalised abortion services across the country.
What does this mean for South Africa?
A question many South Africans are asking, is: What are the implications for our country, where abortions are legal, if the US reverses their abortion rights? Would the US, for instance, put restrictions on aid money for reproductive health programmes in South Africa and say funds can’t be used for abortion services?
Or, will potential changes in US abortion laws spur changes in our own termination of pregnancy legislation?
Experts say two possible scenarios could play out:
Scenario 1: Nothing changes
The demise of the Roe v. Wade case will have little impact on access to abortion services in South Africa, but that wouldn’t change the fact that, despite termination of pregnancy being legal in the country, abortion policies are badly implemented.
An investigation by Bhekisisa and the US-based nonprofit organisation, TRIAD Trust, showed it’s also nearly impossible to get in touch with public sector clinics that provide abortions. In an effort to map free, legal abortion services in South Africa, we phoned listed abortion facilities to confirm they’re indeed providing the service. So far, we’ve made nearly 16 000 calls — three-quarters of the calls made to state facilities (by data capturers) between 2020 and 2022, have gone unanswered.
The lack of access to abortion — and contraception — have had a devastating impact.
For instance, authors in the South African Medical Journal estimate that teen girls giving birth while they’re between the ages of 10 and 14 have increased by 50% between 2017 and 2021, and it increased by nearly a fifth for girls aged between 15 and 19.
Marion Stevens, a policy analyst and co-author of the health department’s new treatment guidelines for abortion, explains: “The inefficiency of the health service is a far bigger threat to reproductive justice in South Africa than the Roe v. Wade debate in America.”
Scenario 2: The decision adds grist to the anti-abortion mill
South Africa’s abortion law has been in place for more than two decades, but it hasn’t gone uncontested.
Take the African Christian Democratic Party (ACDP), for instance. The party has tried twice (in 2007 and 2017) to roll back abortion rights using private members bills. Such legislation is proposed by members of parliament and not by a cabinet minister as is usually the case.
Both attempts have failed, but legal experts are concerned that a sea-change in US abortion law could embolden such conservative political groups to organise around issues of abortion to gain power.
The furore may even disrupt funding flows to civil society organisations that support the right to abortion in favour of groups that have an anti-abortion agenda, says Shamillah Wilson, acting director of the advocacy group the Sexual and Reproductive Justice Coalition (SRJC).
That’s the short answer.
Read on for more on what you need to know about what South Africa could look like if the ruling of the landmark case that legalised abortion in the United States in 1973 is reversed.
What has the United States law got to do with South Africa?
Very little if anything, explains Cathi Albertyn, a law professor at the University of the Witwatersrand and South African Research Chair on equality, law and social justice.
The findings of Roe v. Wade were never written into a national law or included explicitly in the US Constitution. Instead, Albertyn says, the finding was based on an interpretation of one of the amendments to the US Bill of Rights which ensures people’s right to liberty.
The case and the way it interprets liberty informs many other Supreme Court judgements in the US, including the legalisation of same sex marriage and the ruling that made it legal to marry someone from a different race.
The thread that runs through all these arguments is that people’s right to liberty can be interpreted to include privacy, and that those privacy protections should prevent the state from intervening in people’s personal lives.
In South Africa, the legal situation is very different, says Albertyn.
Here, there is a national law which ensures the right to the termination of a pregnancy (abortion was legalised in 1996), and unlike states in the US, provinces cannot make their own laws or policies that don’t align with national laws.
Secondly, the South African Constitution affords people the right to privacy and ensures the right to abortion in section 27: “Everyone has the right to make decisions concerning reproduction”…. and control over their body.”
Says Albertyn: “We have the kind of abortion law that American feminists dream of. And the chances of these protections changing are very slim.”
It is possible to alter South Africa’s Constitution, but that would mean that two-thirds of the members of parliament (or 266 people) have to agree to make the change. In addition, six of the country’s nine provincial councils must also agree on any proposed tweaks.
Will changes in US abortion laws affect the funding pro-abortion groups in SA receive?
Funding from right wing groups in the United States is already prominent in South Africa’s civil society landscape.
The Family Policy Institute (FPI), which has fought against plans to roll out comprehensive sexuality education at schools, is one example. The FPI has close ties to a Christian think tank in the US, who are opposed to abortions.
Experts Bhekisisa consulted all agreed that a change in US abortion politics could embolden groups working to push back against the right to abortion, and issues around the rights of the people in the LGBTQIA+ community.
This lobby uses many tactics to influence policy, an internal SRJC report found. These include legal challenges through parliament or the court system, opinion pieces in the media, or targeting university medical students to influence their practice in the future.
In 2020, an investigation by the media organisation, Open Democracy, revealed that US right wing funding was behind “pregnancy crisis centres” which claim to give “advice” to pregnant women but really advocate against terminations.
How does all this link to a reversal of Roe v. Wade?
The problem is that such a move from a global power grants South African anti-abortion groups’ arguments legitimacy, says the SRJC’s Wilson.
“Their campaigns gain legitimacy, they gain traction, and they get more funding.”
Donor dollars are already rare for reproductive justice organisations such as Wilson’s, and she fears the pool will only get smaller.
Moreover, if anti-abortion groups increase or expand, groups such as the SRJC will have to revert their energy to fight those tactics instead of focusing their energy on holding the South African government accountable to implement the country’s abortion legislation efficiently.
Will the SA government get less aid money from the US if American abortion laws are reversed?
“The end of Roe v. Wade should not impact foreign assistance from the United States government,” says Bergen Cooper, policy director at Fòs Feminista, a global alliance advancing sexual and reproductive health, rights and justice.
Money from the American government doesn’t always come without strings attached. The Mexico City Policy, for instance, also called the global gag rule, allows the US government to cut funding to organisations if they perform or promote abortions – whether it’s done with US money or not.
This policy is reinstated every time a Republican president is elected to office in the US and revoked whenever a Democrat is sworn in.
President Joe Biden repealed the global gag rule at the start of his term in January 2021, but research conducted by Fòs Feminista found that some organisations and governments that receive US funding were not aware that the gag rule had been revoked, so the policy was effectively in place for much longer – and its harms extended.
Says Cooper: “There is a real concern that the leak from the Supreme Court might create even more confusion about the gag rule and whether it has been revoked. It has been revoked and the US government must keep reminding partners around the world.”
So, even though the change in abortion laws in the United States is unlikely to curb aid to the developing world, Cooper argues “the fear is not unfounded”.
Fòs Feminista research shows that whatever happens in the United States emboldens other governments to follow suit, so if abortion rights are revoked, it’s much more of a public relations problem for the US and “the erosion of good US diplomacy overseas”, a senior public health advisor in the US government, Virginia Baresch, told Fòs Feminista’s researchers.
South African law professor, Cathi Albertyn, summarises the situation at home aptly: “The threat is political, not legal.”