Abortion: the right to choose

One of the most hotly debated pieces of legislation in post-apartheid South Africa; the South African Choice of Termination of Pregnancy Act (CTPA) is also one of the world’s most liberal abortion laws. A test for the country’s fledgling democracy, the strategies employed by South African women in parliament and civil society are a lesson for other SADC countries grappling with legislation to protect women’s reproductive health and rights.

 

The Act’s key provisions are that abortion should be available to all women, upon request, up to 14 weeks; from 14-24 weeks, abortion should be available under certain conditions and that the state should provide information and counselling.

 

But the legislation, which was passed in 1996, evoked strong emotion from political parties, religious groups and ordinary South Africans alike. Lulu Xingwa, former chair of the Joint Committee on the Improvement of the Quality of Life and the Status of Women says: “It is one of the bills that may never, or would have taken a very long time to pass if women had not been there.”

 

“The intersections were interesting,” observed then Deputy Defence Minister Nozizwe Madlala-Routhledge, who was at the time the chair of the Parliamentary Women’s Group. “We were able to find common ground with some women, with others it was very much determined by party policy. What we did do (as ANC women) was use our majority and get the support of the men in the party so we could pass this law. But there was support from many individuals in other parties; it was not just the ruling party alone.”

 

There were also other factors, apart from the obvious political ones. This included the ANC’s relatively advanced health policy prior to 1994; commitment by the then Minister of Health, Nkosozana Zuma to the issue as well as research and advocacy by civil society.

 

Prior to the CTPA, South African law only permitted abortion in limited circumstances. White women benefited disproportionately from the provisions, with back street abortions and the resulting complications common in black townships.

 

At the historic Malibongwe Conference in 1990 gender activists set as their first target ensuring provision for reproductive rights in the final constitution adopted in 1996. This guarantees “bodily and psychological integrity” including the “right to make decisions concerning reproduction.”

 

Women in parliament and civil society continued their active lobbying and advocacy around getting a law on termination of pregnancy passed. But a man – Abe Nkomo, Chair of the Portfolio Committee on Health, and of an ad-hoc committee established to look into the matter – emerged as the main champion of the bill.

 

The majority of “pro-choice” submissions located their arguments within a human rights framework and an understanding of the reality of women’s lives that included poverty, high levels of teenage pregnancy and the unequal relations between women and men.

 

Supported by organisations such as Human Life International from the USA, pro-life groups rejected abortion under any circumstances and mounted visible demonstrations.

 

Towards the time of the vote, various groups called for MPs to be able to vote according to their conscience. The conscience vote became a contested issue within the ANC supported by many MPs who opposed abortion for religious reasons.

 

The ANC, in a decision criticised by its leading women, made the concession that members be absent from the vote, as long as they had informed the Chief Whip. Only a dozen or so chose this option. The Democratic Party (DP) and the Pan Africanist Congress (PAC) required their members to vote according to their pro-choice policy. The National Party (NP) and the Inkatha Freedom Party (IFP) allowed a conscience vote.

 

What is interesting about the debate and the vote is the extent to which those for and against cut across gender and political lines: a reflection of the growing maturity in the South African parliament.

 

Then PAC MP Patricia De Lille spoke in favour of her party’s pro-choice policy: “Socio-economic hardships do result in unwanted pregnancies and unwanted children. Equally important is the fact that nobody can deny that women, like anybody else, have a right to control their own bodies and freedom of choice.”

 

Eric Lucas, then IFP Caucus Chair said the party allowed a conscience vote because “the majority, including women, had great reservations.” IFP MP Sue Vos said: “I would not wish any woman to have an abortion, but I feel strongly for, and I made my views known at every platform.”

 

On the other hand, IFP MP Ruth Rabinowitz, in exercising her conscience vote, noted that: “Abortion is not only about women’s rights. It is also about responsibility, morality, safety and health. No one should be able to deny a woman the right to equality, privacy, dignity and freedom of the person. The Constitution protects those rights. However, no right is absolute. In helping women exercise their rights, ought we not also to encourage them to be responsible?”

 

All the ANC speakers placed women’s right to choose at the centre of the debate. The minority of ANC members who opposed the bill included women and men. One Muslim ANC MP felt torn between wanting to support his party, yet not being comfortable because of his position within the Muslim community. He stayed away.

 

The CPTA passed by 210 for, 87 against, and five abstaining. The Act faced a legal challenge by pro-life groups in the Constitutional Court in 1997, but this was successfully challenged by the RRA with support from bodies like the Commission on Gender Equality (CGE).

 

The CPTA is an illustration of several factors at play: a democratic dispensation, progressive constitution, strong links between legislators and civil society, a substantial presence of women in parliament, and a progressive ruling party.