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Political, not legal, threat from US abortion row

If American courts decide to overturn the right to an abortion in the US, it should not have any bearing on South African law – or affect American financial support to the Health Department, experts say. But it could be rich fodder for the pro-abortion lobbyists locally.

US abortion laws are in the news, reports Bhekisisa, because on 2 May, US news organisation Politico published a leaked draft opinion written by a conservative judge of the US Supreme Court, Samuel Alito, backed by five of the court’s nine judges. Alito wrote that the court’s 1973 ruling on a case known as Roe v Wade was “egregiously wrong from the start”.

If the opinion is adopted officially, Americans’ right to abortion would, as almost 50 years ago, be decided entirely by the state in which they live. The Supreme Court’s support for Roe v Wade made it possible for states’ anti-abortion policies to be struck down.

Conservative states are already gearing up to make abortions illegal.

Roe vs Wade has been upheld by American courts for 49 years, but it has not resolved disagreements about abortion, who should be able to terminate their pregnancies, and why.

What is Roe v Wade?

The 1973 court case revolved around Norma McCorvey. Pregnant and unmarried, she wanted an abortion, but the law prohibited this. Back then, women in Texas could only end their pregnancies in life-threatening pregnancy situations in which a termination could save a pregnant woman’s life.

McCorvey’s lawyers gave her the pseudonym “Jane Roe” and filed a case against her state’s district attorney, Henry Wade, arguing that Texas abortion laws were unconstitutional. Judges ruled in McCorvey’s favour. And when Texas appealed directly to America’s highest court, McCorvey won again.

At the time, abortions were already available in some parts of America, but this decision meant state policies that prevented terminations had to be struck down. In short, the Supreme Court decision legalised abortion services across the country.

What this means for SA

Will there be implications for SA, where abortions are legal, if the US reverses abortion rights? Or restrict aid money for reproductive health programmes here, with American saying funds cannot be used for abortion services? Or spur changes in our own termination-of -pregnancy legislation?

There are two possible scenarios. In one, the demise of the Roe v Wade case will have little impact, but would not change the fact that, despite termination of pregnancy being legal in SA, abortion policies are badly implemented.

An investigation by Bhekisisa and the US-based non-profit organisation, TRIAD Trust, showed it is impossible to contact public sector clinics that provide abortions. To map free, legal abortion services in SA, Bhekisisa phoned listed abortion facilities to confirm they were indeed providing the service. They made nearly 16,000 calls — three-quarters of the calls made to state facilities between 2020 and 2022, have gone unanswered.

The lack of access to abortion and contraception in the country has had a devastating impact. For instance, teenagers giving birth between the ages of 10 and 14 increased by 50% between 2017 and 2021, and by nearly a fifth for girls aged 15 to 19.

Marion Stevens, a policy analyst and co-author of the Health Department’s new treatment guidelines for abortion, explains: “The health services’ inefficiency is a far bigger threat to reproductive justice in SA than the Roe v Wade debate in America.”

In scenario two, the potential US reversal could add grist to the anti-abortion mill.

Our abortion law has been in place for more than two decades, but a new US abortion law could embolden conservative political groups to use the issue to gain power.

It may even disrupt funding flows to civil society organisations that support the right to abortion in favour of groups that have an anti-abortion agenda.

Cathi Albertyn, a law professor at the University of the Witwatersrand and South African Research Chair on equality, law and social justice, says US law has little to do with SA.

The Roe v Wade findings were never written into a national law or included in the US Constitution, but based on an interpretation of one of the amendments to the US Bill of Rights ensuring people’s right to liberty.

In SA, she says, a national law ensures the right to the termination of a pregnancy (abortion was legalised in 1996), and unlike states in the US, provinces cannot make their own laws or policies that do not align with national laws.

Second, the SA Constitution affords people the right to privacy and ensures the right to abortion in section 27: “Everyone has the right to make decisions concerning reproduction” … and control over their body.”

Says Albertyn: “We have the kind of abortion law American feminists dream of. And the chances of these changing are slim.”

Will US abortion law changes affect funding to SA pro-abortion groups?

Experts say a change in US abortion politics could embolden groups working to push back against the right to abortion, and issues around the rights of the people in the LGBTQIA+ community.

How does this link to a reversal of Roe v Wade? Donor dollars are already rare for reproductive justice organisations, and the pool will shrink further.

Will the SA government get less aid money from the US if American abortion laws are reversed?

“The end of Roe v Wade should not affect foreign assistance from the US Government,” says Bergen Cooper, policy research director at Fòs Feminista, a global alliance advancing sexual and reproductive health, rights and justice.

Pepfar (US President’s Emergency Plan for Aids Relief) donated about R7m to SA in 2020 and more than R3bn to NGOs.

Money from the US has strings attached. The Mexico City Policy, for instance, also called the global gag rule, allows the US Government to cut funding to organisations if they perform or promote abortions – whether it is done with US money or not.

This policy is reinstated whenever a Republican president is elected to office and revoked whenever a Democrat is sworn in.

Says Cooper: “There is concern that the leak from the Supreme Court might create even more confusion about the gag rule and whether it has been revoked. The US Government must keep reminding partners around the world.”

Albertyn summarises the situation at home aptly: “The threat is political, not legal.”


Bhekisisa article – Here’s what will happen in SA if the US reverses abortion rights


See more from MedicalBrief archives:


Down’s syndrome takes centre stage in US abortion debate


End of ‘Global Gag Rule’ improves Uganda’s abortion policy prospects


Women in Northern Ireland struggle to access abortion services


US-funded anti-abortionists 'violating SA laws’ — Health Dept


US Supreme Court to decide on major abortion case




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