While we Were Sleeping – The Choice on Termination of Pregnancy Amendment Draft Bill as an Act of Indirect Discrimination? Discussion of the Choice on Termination of Pregnancy Amendment Draft Bill [PMB-2017]
| Jurisdiction | South Africa |
| Published date | 16 August 2019 |
| Date | 16 August 2019 |
| Author | Sheena Swemmer |
| Citation | (2018) 29 Stell LR 107 |
| Pages | 107-123 |
107
WHILE WE WERE SLEEPING – THE CHOICE
ON TERMINATION OF PREGNANCY
AMENDMENT DRAFT BILL AS AN ACT OF
INDIRECT DISCRIMINATION? DISCUSSION
OF THE CHOICE ON TERMINATION OF
PREGNANCY AMENDMENT DRAFT BILL
[PMB-2017]1
Sheena Swemmer
BA BA ( ons) B M D (cand da e)
A orney and Gender Researcher Cen re for App ed ega S ud es Un vers y of he
W wa ersrand
1 Introduction
It seems that while many ordinar y South Africans were sleeping, the
submission per iod for the Choice on Termination of Pregnancy Amendment
Draft Bill [PMB-2017] (“the Draft Bill”) passed them by.2 Although the
Draft Bill indirectly deals with the lim itation of the fundamental right
to reproductive autonomy and equality, women around the country were
unaware of the impending threat to their reproductive rights. The media
failed to present the call for submissions on the a mendment of the Choice on
Termination of Pregna ncy Act 92 of 1996 (“the Act”) as a major news event,
with scant references to the Draf t Bill appearing in newspape rs and on online
platforms.3
Although there are numerous rights th at can be considered as being limited
by the proposed Draft Bill, this note will focus on the right to equal ity and
specically on whet her or not the proposed amendments constitute a case
of indi rect discrimi nation. In doing so I will rst set out the importance of
the Act in protecting certain rights of women. I will then briey set out the
origin s of the proposed Draf t Bill with the aim of assert ing that the sugge sted
amendments are ba sed on political motive and ideological bias rather than
any form of altruist ic intent to better real ise women’s reproduct ive rights. I
will the n briey set out the Constitutional Court’s jurisprudence on indirect
discrimi nation a nd un fair discrimination more generally. In light of this,
I move on to a rgue that the spe cic sections of the Draft Bill, namely the
1 The idea for this article was born out of t he submissions to parliament on the Choice on Termination of
Pregnancy A mendment Bill (dra ft) made by the Centre for A pplied Legal Studie s in August of 2017
2 The subm ission period for the above took place from 14 July 2017 to 9 August 2017 Choice on Termination
of Pregnancy A mendment Bill (dra ft) in GN 517 GG 40970 of 10-07-2017
3 The la ck of general coverage on t he submissions in its elf should be considere d a limitation to t he right of
the genera l public to i nformation a s well as the right to par ticipate in law making and other de mocratic
processes
(2018) 29 Stell LR 107
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amendment to t he denition of the term “gestation period”,4 the provision
of ultrasound machi nery5 and mandatory counselling6 should be considered
as a form of indirect di scriminat ion.7 I will nally conclude by a rguing that
the proposed Draft Bill should not be enacted i n any way what soever, a nd
suggest that discri minatory proposed amendments such a s those contained
in the Draft Bill (whether in the form of direct or indirect discrimination),
should be treated as a form of disc rimination as well as an attempt to li mit an
individual’s rights. Furthermor e, that continuous attempts to amend legislation
or enact legislation based on unfair discrimination against a certain group of
individuals should result in the individual Member of Parliament (“MP”) or
party proposi ng such amendments being subject to disciplinar y processes.8
2 The impo rtance of the Act in prote cting the rights of women
The Act is the product of a history of femi nist activists and me dical
practitioners lobbying for change to the laws concerning abortion from a s
early as the 1960’s in South Africa.9 Hodes explains that the motivation for
the change in laws was to align legislation with medical practices at the time
and the lived realities of many women.10 Albert yn describe s how the focus
on t he need for legislation around abortion was framed as a part of proper
health care a nd that even liberal voices pr ior to 1990 adopted a public health
care lens to motivate for the review of the Abor tion and Sterilization Act 2 of
1975. She goes on to state that only post-1990 was discou rse around abortion
as bei ng a lim itation of choice, equality and reproductive r ights introduced
in South A frican feminist d iscourse.11 On the lived realities of many women
in South Africa, a study conducted at Groot e Schuur Hospita l during 1965
to 1972 records that 13 681 patients were admitted for sepsis due to illegal
abortions, 33% of women a dmitted to the hospital for tetanus were suffer ing
as a result of incomplete abortion s and the mortality rates of those indiv iduals
was 15.8%.12 T he Act was e nacte d in order to li mit ill egal ter mina tions as wel l
as to align the law regarding reproductive autonomy with the Constitution of
the Republic of South Africa, 1996 (the “Constitution”).
4 S1 of the Dra ft Bill
5 S 3(c)(A)
6 S 4
7 I have chosen to focus on only thre e suggested a mendments yet m aintain tha t almost ever y provision in
the draft Bi ll is an instanc e of indirect discr imination
8 It wil l be shown below that p arts of this p roposed amend ment bill had b een submitt ed by the same
individua l in 2010 for parliam entary considerati on, and in this instanc e disci plinary action should
in fact be con sidered for co ntinuous discrim ination against women The previous bill is available
at Parliament ary Monitori ng Group “Dudley’s legisl ative proposal on Choi ce on Termination of
Pregnancy A mendment Bill: rejection” (19-10-2010) PMG
(accessed 01-09-2017)
9 R Ho des “Th e Cult ure of Il legal Ab ortio n in Sout h Afri ca” (2016) 42 Jou rnal of Southe rn African Stu dies
79 82
10 82
11 C Alb ertyn “Claiming and Defendi ng Abort ion Rights in Sout h Africa” (2015) 11 Revist a Direito GV
429 433-434
12 433-434
108 STELL LR 2018 1
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