CAPE TOWN: 17 June 2022

Safeguarding access to safe and legal abortions – Constitutional Court Judgment handed down in the matter of Voice of the Unborn Baby NPC and another v Minister of Home Affairs and another.

In a country where access to abortion and other sexual and reproductive health care services are difficult to access the Constitutional Court judgment handed down on Wednesday, 15 June 2022 in the case of Voice of the Unborn Baby NPC and another v The Minister of Home Affairs and another goes a far way in ensuring that women’s right to choose is protected.

The Women’s Legal Centre Trust and the Sexual Reproductive Justice Coalition made submissions to the Court as friends of the Court to ensure that the relief being sought by the Applicants in the case did not have a negative and discriminatory impact on women who made use of their rights under the Termination of Pregnancy Act.

In the judgment the Constitutional Court rejected the relief sought by the Applicants. The Constitutional Court found that the Pretoria High Court had misinterpreted the Birth and Death Registration Act and that there was no legal basis to have it declared unconstitutional. The Court found that there was no prohibition as submitted by the Applicants in the legislation that dealt with the burial of fetal remains, because the legislation in question was focused on the registration of births and deaths, and therefore the intention, purpose or objective is not to address the burial of fetal remains of a pregnancy loss that occurred earlier than 26 weeks irrespective of the manner of the loss.

The Court however did not venture into whether or not there is a right to bury in the event of a loss of pregnancy other than still-birth or loss of pregnancy through human intervention, the court found that it did not have sufficient information before it to make a decision on whether this was a right that could be practically accommodated in South Africa’s current sexual and reproductive health care landscape and elected to not grant the Applicant’s the declaratory relief they sought.

The matter came to the Constitutional Court via the Pretoria Division of the Gauteng High Court which on 26 March 2021 handed down judgment in the matter of Voice of the Unborn Baby NPC and another v Minister of Home Affairs and another (Case no: 16402/17). In that matter and yet again in the Constitutional Court the Women’s Legal Centre Trust represented by Women’s Legal Centre sought to assist the Court in understanding why the option to bury fetal remains should not extend to abortion service provision in South Africa. The WLC argued that the relief being sought risked impacting negatively on women’s access to abortion services including:

  1. The option to bury in abortion services would invariably impact women’s ability to seek and access these services without fear, stigma, prejudice, and marginalisation. This hinges on the argument that the inclusion and implementation of the option to bury in the current circumstances of service provision would effectively amount to a barrier to access.
  2. Where the relief would adversely impact access to services, this would violate the constitutional rights to freedom and security of the person, which include the right to bodily and psychological integrity and the right to make decisions concerning reproduction; privacy; equality; dignity; and access to reproductive health care.
  3. Abortion services are governed by a separate legal framework to that of involuntary pregnancy losses (miscarriages and stillbirth). The application by the Applicant did not deal with the effect the relief would have on the Choice on Termination of Pregnancy Act or the provision of services in terms of the Act. The applicants could therefore offer no assurance that the right to bury would not negatively impact the rights of those seeking abortions in South Africa.

Even though the Court did not rely on our submissions to make its determination we maintain that was necessary for WLC and the SRJC to join the matter to ensure that the Constitutional Court understood the current landscape of abortion service provision in South Africa and recognised that the inclusion of an option to bury in the current landscape would amount to a barrier to accessing services and violate the rights of those seeking the service.

As reflected in our press statement of 1 June 2018 following our initial application to join this matter as amici curiae, women in South Africa continue to face serious barriers in access to safe and legal abortion services despite having one of the most progressive abortion laws in the world. In the near four years since joining this matter, the context of abortion service provision remains unchanged and severely inaccessible for those who require the service. Women continue to face issues of:

  • Stigma and discrimination when seeking the service at various points of access at health facilities, from security guards to front-desk staff to the medical practitioners providing direct access to the service;
  • Lack of open and accessible information about where to access abortion services in South Africa;
  • Poor supplies of reproductive health commodities and regular stock-outs of contraception and medical abortion drugs; and
  • Limited numbers of doctors, nurses and midwives trained and willing to provide the service together with limited numbers of facilities designated to offer the service.

The current context of the COVID-19 pandemic has also not improved the experiences of women. A recent 2021 reportrecorded that there was an overall increase in South Africa’s mortality and morbidity rates and that due to limited access to services, terminations of pregnancies had decreased by 17%. It is also important to point out here that this data was based on official and recorded information and not on the clandestine abortion procedures that still continue unbridled. Women, therefore, continue to be disproportionately affected by the challenges faced by our health system specifically in accessing sexual and reproductive health services. They are also disproportionately suffering the burdens of COVID-19 on the healthcare system.

The WLC and SRJC welcome the Court’s acknowledgement that the right to fetal burial cannot be determined without relevant evidence being placed before the Court on the impact that it would have on the health care sector in South Africa, and it cannot come at a cost of violating the rights of others who rely on the public health care.

We believe that the judgment has successfully prevented a regressive step that would have had devastating consequences for women’s sexual reproductive health rights in our country. It has also strengthened the resolve of the WLC to continue our work to ensure that women’s right to access sexual and reproductive health is realised. We will therefore remain committed and focused on challenging and combatting regressive measures at domestic and international levels aimed at controlling women’s bodies, hindering their ability to make informed choices about their bodies, limiting their ability to decide about reproduction, and realising all their rights generally.

A copy of the Constitutional Court judgment and order can be accessed here and the High Court Judgement here, respectively.

The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.

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