South Africa's 1996 Choice on Termination of Pregnancy Act: expanding choice and international human rights to black South African women.

• Author: Haroz, Audrey E.

1. INTRODUCTION

   We, the people of South Africa ... adopt this Constitution as the supreme law of the Republic so as to--Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights ... based on the will of the people and [in which] every citizen is equally protected by law.

   --Preamble, Constitution of South Africa, 1996(1)

   Human rights ... like democracy and all vibrant visions, are not static, nor are they the property of any one group. While these concepts began in a particular historical moment and were defined in terms of the needs of a limited sector of the population, their dynamism and ongoing relevance stem from the fact that more people are claiming them and, in the process, expanding the meaning of "rights" to incorporate their own hopes and needs ... So, too, women are transforming the concept of human rights to address the degradations and violations that are a fundamental threat to our human dignity ...

   --Charlotte Bunch(2)

   For the final time, at midnight on April 26, 1994, individuals in South Africa's nine provincial capitals(3) lowered the blue, white, and orange South African flag, long associated with a regime of oppression and apartheid; multicolored post-apartheid banners were raised in its stead.(4) On April 27, South Africa held its first fully democratic election, marking the end of a four-year transition out of apartheid and into majority rule.(5) April 27 also marked the birth of the Interim Constitution, which promised a new social order in South Africa based on equality and fundamental rights.(6) Commentators everywhere realized that "beyond the euphoria" of the new government and Constitution lay the difficult, task of "putting South Africa right and building it into a strong, unified nation."(7) Against a backdrop of over forty years of apartheid rule and oppressive customary law, South Africa has pledged to create a new and better South Africa by moving beyond the racial, gender, tribal, and ethnic hostilities that plagued its past.(8)

   The 1993 Interim Constitution and the Constitution adopted in 1996 by the post-apartheid government both espouse equality for women as a goal of the South African regime,(9) and, in certain respects, the South African government has succeeded in promoting the position of women in South African society. The South African parliament currently consists of almost twenty-five percent women, and two women sit on the South African Constitutional Court.(10) These statistics place South Africa among the world's leaders for female representation in parliamentary bodies.(11)

   South Africa passed another large hurdle in women's rights on February 1, 1997, when the South African Choice on Termination of Pregnancy Act (hereinafter 1996 Abortion Act) went into effect. The Act gives women of any age or marital status access to abortion on demand during the first twelve weeks of pregnancy, and in certain cases, extends access to the first twenty weeks of pregnancy.(12) With the passage of this new legislation, South Africa's first democratic parliament replaced one of the most stringent abortion laws in the world with one of the most liberal.

   Part II of this Note examines the cultural and political setting in which South Africa passed the 1996 Abortion Act. This section describes the traditional position of black South African women(13) in a society under apartheid and customary law. Part II also provides an overview of the rights recently granted to the citizens of South Africa by South Africa's Constitution.

   Part III describes South Africa's previous abortion legislation and examines the detrimental impact such restrictive laws have had on black South African women. This Part further discusses the debate surrounding the adoption of South Africa's current abortion legislation and delineates particular provisions of 1996 Abortion Act. Part III concludes with a brief account of the 1996 Abortion Act's effects.

   Anticipating a constitutional challenge to the 1996 Abortion Act, Part IV of this Note provides an appropriate framework for analyzing the 1996 Abortion Act's constitutionality under the South African Constitution, the values underlying South African society, and international law.

   This Note concludes that the 1996 Abortion Act is a significant victory for black South African women. The Act reflects a recognition of reproductive control as an essential element in the achievement of women's equality, security, and human dignity. Despite these symbolic achievements, the 1996 Abortion Act's impact will be hindered by the struggling economics of the evolving health care system in South Africa.

2. THE STATUS OF BLACK SOUTH AFRICAN WOMEN AND ITS IMPACT ON REPRODUCTIVE CHOICE

   The interwoven systems of apartheid and customary law defined the role of black women in South African society and severely limited the scope of these women's reproductive choices. Consequently, many black South African women viewed illegal and dangerous abortions as their only alternative to gaining control of their lives and bodies.

   In the hope of expanding women's reproductive choices and control, the 1996 South African Constitution abolished racial and gender segregation established under apartheid and customary law and ensured the availability of reproductive autonomy to black South African women.

   1. The Traditional Status of Black Women in South African Society and Its Effect on Reproductive Choice

      Before the 1993 Interim Constitution, black South African women lived under a system of apartheid that discriminated against them on the basis of race. In addition, a system of customary law discriminated against them on the basis of gender.(14) The convergence of these systems of racial and sexual discrimination created a state of powerlessness, vulnerability, and oppression for black South African women(15) that relegated them to "the lowest rung of [South Africa's] social ladder."(16) Apartheid and customary law jointly operated to deprive black South African women of reproductive autonomy by preventing them from choosing whether to have sex, whether to have children, or whether to carry a pregnancy to term.(17)

      1. Apartheid's Effect on Reproductive Choices for Black South African Women

         Apartheid rule began in 1948 as a state-instituted system of racial segregation that "prescribed [the] social, political, and geographical segregation" of the South African population.(18) The National Party's division of South Africa along racial lines stemmed from the belief that white interests were best served by keeping the races apart.(19) The Population Registration Act of 1950 implemented the system of apartheid by requiring the classification of South Africans into racial groups(20) of white, black, and coloured.(21) South African citizens were subject to laws based upon their racial classification.

         Apartheid rules controlled various facets of black South African life. For example, those rules dictated where blacks could reside and what degree of access blacks could have to urban centers and political activities.(22) Blacks were forbidden from voting for national offices; elections that did occur were often rigged.(23) Apartheid laws outlawed principle opposition groups such as the ANC.(24) The South African Congress operated without a bill of rights.(25) In essence, apartheid became a system of institutionalized violence against blacks and other non-white groups.(26)

         While apartheid laws negatively impacted all black South Africans, these laws especially affected black South African women. In a society in which women generally had little voice in politics and government, the apartheid laws sounded the death knell for the protection of women's issues and the advancement of reproductive choices.(27)

         Pass laws regulated the residence of Africans and required the production of identification papers(28) on demand for any individual older than sixteen.(29) An individual's right to remain in an industrial or commercial area was conditioned on attaining a pass.(30) Pass distribution was linked to employment. Thus, African men, often migrants from the bantustans(31) serving a period of contract labor in the city, obtained passes, whereas women, children, and the elderly or disabled were denied access to the urban workforce and left to reside on the bantustans.(32) The Urban Areas Act further reduced the number of women in the urban workforce by allowing the exclusion of "idle and undesirable" individuals from urban areas.(33) Under apartheid law, women were easily categorized as "idle and undesirable."(34) While the Group Areas Act segregated blacks into rural residential areas, black South African women were left in uncultivated rural settings to tend to children and crops while men left for the cities to work.(35) These rural settings lacked adequate resources such as doctors, hospitals, and counseling programs that could have provided professional information concerning reproductive choices for women. Apartheid made it almost impossible, and often illegal, for African women to live with their husbands.(36)

         Women who gained access to urban work under apartheid were typically employed as domestic servants for white families. These women either faced the tremendous burden of commuting the long distance from rural homes to urban cities or stayed with their urban employers and were separated from their own families.(37) Apartheid law prevented female domestic workers from living with their husbands or children.(38)

         Black women who secured entry into the urban workforce often became victims of sexual harassment, ranging from jokes or insults to rape.(39) Most women simply tolerated such behavior; the first case of sexual harassment in South Africa was not brought until 1989.(40)

         Under the apartheid system, blacks received a separate "Bantu Education" designed to teach black children skills for entrance into menial labor.(41) This...