The possible overturning of a law that protects a woman’s right to abortion in the United States, might not have legal implications for South Africa but there are concerns it could impact funding for various health programmes in the country.

Last week’s leaked draft of a majority opinion of the US Supreme Court revealed the court’s leaning towards undoing its 1973 Roe v Wade ruling which gave women in the US a constitutional right to abortion.

Concerns over the tension in the US

South African civil society organisations have expressed concerns about the ripple effect that could occur if Roe v Wade is overturned.

Co-executive director of Sonke Gender Justice, Heather Van Niekerk said that there is a fear that it will have a negative impact of funding of sexual reproductive health programmes in a number of African countries, including South Africa.

“The developments in the US are important for us in terms of how we need to ensure that we protect the gains that women have made with regard to sexual reproductive health rights all over the world. In SA, there is a policy that has been firmly confirmed by the constitution and that provides access to adequate healthcare services for women that require access to termination.”

Safura Abdool Karim, a public health lawyer, says that the worry lies in the effect of the US adopting a policy like that of the Global Gag Rule, not the court decision itself.

The global gag rule was a policy that stopped US funding from going to facilities that were recommending or referring women for family planning services, including abortion.

“South Africa and many other African countries were impacted by the adoption of the policy. This is because a lot of HIV programmes in Africa are funded by the US and HIV treatment is about sexual health and reproductive rights. So, inevitably, when someone’s discussing issues around HIV, they’re also having discussions around family planning. And in the countries where abortion is legal, those discussions include abortions”, Abdool Karim said.

Overturning of Roe vs Wade ruling

The draft indicated that five of the nine judges agreed with the decision to overturn this ruling. The finality in this decision could threaten other rights that are integrated in privacy in the United States – including abortion and same-sex marriage.

Abdool Karim says the final decision could have very little bearing on SA from a legal perspective.

“Reproduction, health and reproductive services are mentioned at least twice in SA’s Bill of Rights in the right to health care section, but it’s also recognised in the right to bodily integrity section where the constitution says that a woman has a right to make choices about her reproduction. So we’re not even remotely in the same context as the US,” said Abdool Karim.

‘Enforced childbirth is slavery’: Margaret Atwood on the right to abortion https://t.co/qkHbOjqseB

— Margaret E Atwood (@MargaretAtwood) May 7, 2022

The Choice on Termination of Pregnancy Act

The Choice on Termination of Pregnancy Act is a law that governs abortion in South Africa. It gives women the right to have an abortion up to the 12th week of their pregnancy. Between the 13th and 20th weeks a woman has to demonstrate that the pregnancy is a health risk, that there is a substantial risk that the foetus will suffer from a physical mental abnormality, that the pregnancy resulted from rape or incest, or that the continued pregnancy would significantly affect their social and economic circumstances.

Abdool Karim describes the Act as fairly progressive for presenting these choices to women, and noted that it reflects the strong protections that the constitution affords sexual reproductive health rights.

“It’s especially important because of the resource constrained healthcare system that we have. Women don’t always have access to health care services. So, when you put in a four week window, women may have to take time off work, travel long distances, require transport money, and have to make more than one trip. Cutting time periods disproportionately impacts the poorest women because they are the ones who have the hardest time accessing healthcare services.”

Constitution vs reality

However the the reality of accessing an abortion in SA is a far cry from the policies in the constitution. There are hospitals that do not offer abortions because of a lack of resources and untrained healthcare professionals.

“The service is not user-friendly because many women complain about the stigma they experience from the community and healthcare workers. The long waiting hours to access the service, some having to turn back home because they were not attended to are factors that limit women from accessing the right to a safe abortion,” said Cincinantia Lebjane, founder and director of the ​​Resoketswe Lebjane Foundation based in Bushbuckridge, Mpumalanga.

She said that healthcare facilities that provide safe medical abortions are especially scarce in rural areas.

“It is important that the maintenance, designation and availability of these services is consistent so that it is effective. Abortion is part of family planning. It is also a legal procedure but we still have a crisis of unsafe abortions in our country.”

She added the pressure women face from some healthcare not to have an abortion discourages them from accessing safe and legal services.

“We still have unsafe providers of abortions who perform ‘backyard’ procedures, where instead of going to a public health facility, women will end up turning to them, which can result in serious life threatening conditions.” – Health-e News