By Norm Dixon
The South African parliament has overwhelmingly passed a new law that entrenches the right of women to free, safe abortion. The Termination of Pregnancy Bill has been hailed as one of the best reproductive rights laws in the world.
The bill allows for abortion on request, without conditions, for up to 12 weeks after conception, and up to 20 weeks if continued pregnancy may severely affect a woman's socioeconomic situation, be a risk to her physical or mental health, if the pregnancy resulted from rape or incest, or if there is a great risk to the foetus of severe physical or mental deformity. The legislation stipulates that the state must provide or arrange counselling before and after a termination.
Only the consent of the woman is required for an abortion. No spouse, partner or parent has any legal say in whether an abortion can proceed. A women under 18 years must be advised to consult her parents, family, guardian or friends, but an abortion cannot be denied if that advice is not taken. Doctors and nurses with conscientious objections may refuse to perform or assist abortions, but it is an offence for them not to refer a women to someone who is prepared to carry out the procedure. Abortions will be performed free in public hospitals and at primary care health clinics throughout the country.
In hearings before the law was passed by the upper house on November 6, Rachel Jewkes Pityana of the South African Medical Research Council said that illegally induced abortions were unique among causes of morbidity and mortality in that they were both self-induced and their health consequences were entirely due to legislative restrictions.
According to an MRC survey, Pityana said, each year 45,000 women in South Africa were admitted to hospitals with incomplete abortions. "We suspect this is a significant underestimate of the total number of women who have abortions." Some 425 women died in hospital every year from septic abortion.
The new bill is a vast improvement over the apartheid-era law which restricted legal abortion to situations in which the woman's life was threatened, cases of rape and where the mother was "mentally deficient". Two doctors had to agree an abortion was necessary but most rural health clinics do not have two doctors. The law excluded abortion on socioeconomic grounds.
This meant that only wealthy, educated white women were able to obtain legal abortions. For the vast majority of South African women, especially rural women, illegal "back street" abortions were their only recourse. It is estimated that there are between 250,000 and 400,000 back street abortions a year. Under the old law, only 1000 legal abortions were performed annually.
The passage of the bill was vehemently opposed by the National Party, the far-right Freedom Front and the fundamentalist African Christian Democratic Party. The "liberal" Democratic Party allowed its members a conscience vote. The Pan Africanist Congress' African Women's Organisation voted on October 28 to call on the PAC to abstain on the vote because abortion should not be available to minors. "African women should place an emphasis on African cultural values with a view to nation building and humanity", the AWO said.
A debate also erupted within the African National Congress. Sections of the organisation with strong religious beliefs argued for MPs to be allowed a conscience vote. After a six-hour debate on September 30, the ANC national executive reaffirmed its policy on the right to choose for women. Spokesperson Jacob Zuma said the bill "will greatly extend the scope for the exercise of women's rights in our country, and definitely deepen the emancipation of women. We do not accept there should be any mandate for a 'vote of conscience' for ANC MPs."
The bill was also strongly supported by the Congress of South African Trade Unions. COSATU assistant general secretary Zwelinzima Vavi said the passage of the bill would prevent the deaths of thousands of women from illegal abortions and provide a supportive environment for the survivors of incest, rape and abuse. It would contribute substantially to the upliftment of the living conditions of working and poor women.
Most of South Africa's major churches opposed the bill. On November 2, several hundred Catholic Church members marched through Johannesburg. Bishop Reginald Orsmond described the bill as a crime against humanity. Orsmond read out a letter from Mother Teresa and a message from the Pope opposing the bill. The Southern African Bishop's Conference has vowed to challenge the bill in the Constitutional Court.
The Catholic church was, however, embarrassed during the hearing when a women told of how a Catholic priest got her pregnant and the Catholic church paid for the abortion.
The churches have not been immune from debate within their ranks. Addressing the parliamentary hearings in Cape Town on October 15, Catholic lay person Mary Armour said it was unacceptable for a group of celibate men in a church that barred women from policy making and the priesthood to make and interpret moral laws on women's reproductive choices. The bishops' position on abortion oppressed women, she said, adding that it had less to do with protecting the lives of unborn children than the continued refusal of human rights to women and the control of their sexuality. Armour said that the Catholic church's opposition showed the extent to which it "seemed determined to operate as an unrepresentative and undemocratic institution in a democratic society".