The US Supreme Court’s overturning of a landmark abortion ruling threatens the freedom of women in all countries – including South Africa.
While women in this country have the constitutional right to make decisions concerning reproduction, the US court’s decision on 24 June on the landmark Roe vs Wade ruling that established the constitutional right to abortion shows just how tenuous those rights are, experts say.
The decision has reverberated around the world, with France one of several US allies condemning the decision, reports The Citizen. President Emmanuel Macron has publicly denounced the threat to women’s freedom.
The decision that ended the constitutionally protected right to abortion after nearly 50 years is expected to lead to bans on the procedure in about half of America’s states.
The New York Times reports that all three of former President Donald Trump’s appointees were in the majority in the 6-to-3 ruling. The decision vindicated a decades-long Republican campaign to install conservative judges and justices. It also reversed Planned Parenthood v Casey, a Supreme Court case that reaffirmed Roe in 1992.
Justice Samuel Alito, writing for the majority, echoed much of what was leaked in a draft opinion in May.
“Abortion presents a profound moral question,” Alito wrote. “The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Thirteen states have trigger laws that will ban the procedure either immediately or in the coming days. Abortion bans went into effect this week in nine states – Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Utah and Wisconsin – in response to the court decision. The procedure is likely to be banned in another 11 states. Abortion clinics in Montgomery, Ala. and Sioux Falls shut down immediately.
SA’s Women’s Legal Centre director Seehaam Samaai said the US case would have no direct implications on this country’s legal framework or rights to abortion.
“But it certainly will contribute to the ever-growing list of barriers faced by women. Whenever conservative anti-rights rhetoric grows through anticipated victories, the impact is felt here in South Africa and across the globe,” she told The Citizen.
United Nations Special Rapporteur on the Right to Health Dr Tlaleng Mofokeng said the South African Constitution and courts will not make it easy for an overnight blanket overturn of the evidence-based policy that was the Choice on Termination of Pregnancy Act of 1996.
“The problem with the US Supreme Court judgment is that it happened at a time when globally the anti-human rights, specifically anti-women rights distractors, are gaining popularity,” she said.
In an anguished joint dissent in the US Supreme Court, the three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – wrote that the court had done grave damage to women’s equality and to its own legitimacy.
“With sorrow – for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.”
The case, Dobbs v Jackson Women’s Health Organisation, concerned a 2018 law that banned abortions in Mississippi at 15 weeks. That law was a calculated challenge to Roe, which prohibited states from banning abortions before foetal viability, currently around 23 weeks.
Alito used a legal philosophy known as “original intent”, which involves scrutinising the founding document’s language for direction on contemporary issue, to argue that the right to an abortion could not be found in the Constitution.
“Today the Supreme Court of the United States expressly took away a constitutional right for the American people,” President Joe Biden said. “They didn’t limit it, they simply took it away.”
Biden said his administration would defend women who chose to travel to other states that allowed abortions. “This decision must not be the final word,” he said.
Mofokeng said these kinds of decisions “do not happen overnight” and the lesson for South Africans was to remain vigilant to legislation proposals that limited rights.
“If it is an abortion today, it may be same-sex marriage or surrogacy tomorrow, because ultimately these laws and the people advocating for retrogression of these rights are anti-autonomy,” she said.
The decision to overturn Roe clashes with the views of a majority of Americans.
Justice Clarence Thomas’ concurring opinion overturning Roe raised questions about other rights that could disappear. Thomas said the same rationale that the Supreme Court used to declare there was no right to abortion should be used to overturn cases establishing the rights to contraception, same-sex consensual relations and same-sex marriage.
Thomas wrote that the court “should reconsider” all three decisions, saying it had a duty to “correct the error” established in those precedents. Defenders of the right to abortion have repeatedly warned that if Roe fell, the right to contraception and same-sex marriage would be next.
“I do believe this is the American way. I don’t think we women have ever mattered,” one woman from Mississippi told The Times. “I have been trying to figure out a way to process my anger, process my fear.”
In response to the ruling, the governors of California, Oregon and Washington announced a joint commitment to maintain access to abortion and contraception and to protect providers and patients from the legal reach of other states. Governor Kathy Hochul of New York declared her state a “safe harbour” for those seeking abortions.
The US now joins a handful of countries, like Poland, Russia and Nicaragua, that have rolled back access to the procedure in the past few decades, while more of the world has gone in the other direction.
“The issue of distinction is to make sure people understand abortion is legal in South Africa,” said Mofokeng. “The problem is people who break the law in the Choice on Termination of Pregnancy Act, which details who, where and when an abortion can take place,” she added.
“We want functioning primary health clinics that don’t turn people away, which don’t stigmatise or discriminate, because then people will leave the health facility to an unsafe pill seller,” she said.
“An abortion performed by a healthcare provider is safe and must be provided by the government free and without unnecessary delays. Contrary to what most believe, we see more older women and married couples requesting abortions.”
She said despite the failure to access modern contraception, many people were raped in South Africa and post-rape care support was fractured, as many facilities were non-functional.
“Anyone who wants an abortion must be able to get it. The only important element is that abortions are safe,” Mofokeng said.
At the start of June, nearly all women in America lived within a few hours’ drive of an abortion clinic. But with Roe v Wade’s overturning, clinics will quickly close in huge swaths of the country, according to The New York Times, which estimates that a quarter of US women of reproductive age would have to travel more than 300km to obtain a legal abortion should political fights play out as expected.
Abortion providers in states that have protected access to abortion are preparing not only for a surge of out-of-state patients but also for cascading effects to women’s health.
“We’ve already seen patients from Texas in our clinic,” one doctor in Massachusetts said. A Texas law banning abortions with no exceptions for rape or incest is expected to go into effect in 30 days. “Appointments for abortions are to be highly prized,” the doctor said.
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