South Africa's 1996 Choice on Termination of Pregnancy Act: Expanding Choice and International Human Rights to Black South African Women

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I. INTRODUCTION

We, the people of South Africa ... adopt this Constitution as the supreme law of the Republic so as to--Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights ... based on the will of the people and [in which] every citizen is equally protected by law.

--Preamble, Constitution of South Africa, 1996(1)

Human rights ... like democracy and all vibrant visions, are not static, nor are they the property of any one group. While these concepts began in a particular historical moment and were defined in terms of the needs of a limited sector of the population, their dynamism and ongoing relevance stem from the fact that more people are claiming them and, in the process, expanding the meaning of "rights" to incorporate their own hopes and needs ... So, too, women are transforming the concept of human rights to address the degradations and violations that are a fundamental threat to our human dignity ...

--Charlotte Bunch(2)

For the final time, at midnight on April 26, 1994, individuals in South Africa's nine provincial capitals(3) lowered the blue, white, and orange South African flag, long associated with a regime of oppression and apartheid; multicolored post-apartheid banners were raised in its stead.(4) On April 27, South Africa held its first fully democratic election, marking the end of a four-year transition out of apartheid and into majority rule.(5) April 27 also marked the birth of the Interim Constitution, which promised a new social order in South Africa based on equality and fundamental rights.(6) Commentators everywhere realized that "beyond the euphoria" of the new government and Constitution lay the difficult, task of "putting South Africa right and building it into a strong, unified nation."(7) Against a backdrop of over forty years of apartheid rule and oppressive customary law, South Africa has pledged to create a new and better South Africa by moving beyond the racial, gender, tribal, and ethnic hostilities that plagued its past.(8)

The 1993 Interim Constitution and the Constitution adopted in 1996 by the post-apartheid government both espouse equality for women as a goal of the South African regime,(9) and, in certain respects, the South African government has succeeded in promoting the position of women in South African society. The South African parliament currently consists of almost twenty-five percent women, and two women sit on the South African Constitutional Court.(10) These statistics place South Africa among the world's leaders for female representation in parliamentary bodies.(11)

South Africa passed another large hurdle in women's rights on February 1, 1997, when the South African Choice on Termination of Pregnancy Act (hereinafter 1996 Abortion Act) went into effect. The Act gives women of any age or marital status access to abortion on demand during the first twelve weeks of pregnancy, and in certain cases, extends access to the first twenty weeks of pregnancy.(12) With the passage of this new legislation, South Africa's first democratic parliament replaced one of the most stringent abortion laws in the world with one of the most liberal.

Part II of this Note examines the cultural and political setting in which South Africa passed the 1996 Abortion Act. This section describes the traditional position of black South African women(13) in a society under apartheid and customary law. Part II also provides an overview of the rights recently granted to the citizens of South Africa by South Africa's Constitution.

Part III describes South Africa's previous abortion legislation and examines the detrimental impact such restrictive laws have had on black South African women. This Part further discusses the debate surrounding the adoption of South Africa's current abortion legislation and delineates particular provisions of 1996 Abortion Act. …