McGregor, Murray; Moore, Rory --- "The Constitutionality of Abortion on Request in South Africa" [1995] MurdochUeJlLaw 28; (1995) 2(3) Murdoch University Electronic Journal of Law

THE CONSTITUTIONALITY OF ABORTION ON REQUEST IN SOUTH AFRICA

Authors:	Murray McGregor University of Natal, Pietermaritzburg
	Rory Moore University of Natal, Pietermaritzburg
Issue:	Volume 2, Number 3 (December 1995)

This article contains the following documents associated with a prize moot held on 10 August 1995 at the University of Natal, Pietermaritzburg:

A: The Topic of the Moot;

B: Relevant South African Legislation;

C, D: The Applicant's Heads of Argument, and Argument; and

E, F: The Respondent's Heads of Argument, and Argument.

Note: Although the arguments we presented in this moot rely to some extent on the specifics of South African constitutional law, they are for the most part general enough to be of interest to anyone involved in the pro-life/pro-choice debate. We hope that this somewhat unusual contribution to a journal may assist an as yet anonymous yet industrious individual somewhere in the preparation of a paper on this subject.

A: THE PROBLEM

SCHOOL OF LAW, PIETERMARITZBURG PRIZE MOOT 1995

CORAM: Justice Y. Mokgoro, Mr Justice N.V. Hurt

  IN THE MATTER BETWEEN:

Ms BROWN APPLICANT

and

THE MINISTER OF HEALTH RESPONDENT

  On 30 April 1995, Ms Brown went to an office party in Pietermaritzburg where she met one of the directors of a company from the United States, Mr Lewis. After much flirtation and great fun, she left the party with Mr Lewis and invited him to her flat. They engaged in sexual intercourse, and on 30 June 1995 she discovered that she was two months pregnant.

She went to the Holy Hospital, a state-controlled hospital, to request an abortion, but the Medical Superintendent of the hospital refused on the basis that such an abortion would be in contravention of the Abortion and Sterilisation Act 2 of 1975.

The matter comes before the Moot Court as a stated case, in terms of which the only issues to be decided by the court are: 1.  Whether or not the requirements for a legal abortion laid down in terms of s2 and s3 of the Abortion and Sterilisation Act 2 of 1975 infringe Ms Brown's rights to privacy, dignity and equality (enumerated in s13, s10, and s8, respectively, of the Constitution of the Republic of South Africa Act 200 of 1993). 2. If there is a violation of any of these rights, whether such violation is permissible in terms of the "limitations clause" (s33) of the Constitution.

FOR THE APPLICANT: MR MURRAY McGREGOR

FOR THE RESPONDENT: MR RORY MOORE

  B: SOUTH AFRICAN LEGISLATION RELEVANT TO THE ISSUES

Abortion and Sterilisation Act 2 of 1975

2 Prohibition of abortion

No person shall procure an abortion otherwise than in accordance with the provisions of this Act.

3 Circumstances in which abortion may be procured

1) Abortion may be procured by a medical practitioner only, and then only-

(a)where the continued pregnancy endangers the life of the woman concerned or constitutes a serious threat to her physical health, and two other medical practitioners have certified in writing that, in their opinion, the continued pregnancy so endangers the life of the woman concerned or so constitutes a serious threat to her physical health and abortion is necessary to ensure the life or physical health of the woman;

(b) where the continued pregnancy constitutes a serious threat to the mental health of the woman concerned, and two other medical practitioners have certified in writing that, in their opinion, the continued pregnancy creates the danger of permanent damage to the woman's mental health and abortion is necessary to ensure the mental health of the woman;

(c) where there exists a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will be irreparably seriously handicapped, and two other medical practitioners have certified in writing that, in their opinion, there exists, on scientific grounds, such a risk; or

(d) where the foetus is alleged to have been conceived in consequence of unlawful carnal intercourse, and two other medical practitioners have certified in writing after such interrogation of the woman concerned as they or any of them may have considered necessary, that in their opinion the pregnancy is due to the alleged unlawful carnal intercourse; or

[Para. (d) substituted by s. 2 (b) of Act 48 of 1982.]

(e) where the foetus has been conceived in consequence of illegitimate carnal intercourse, and two other medical practitioners have certified in writing that the woman concerned is due to a permanent mental handicap or defect unable to comprehend the consequential implications of or bear the parental responsibility for the fruit of coitus.

[Para. (e) added by s. 2 (c) of Act 48 of 1982.]

(2) (a) A medical practitioner who has issued a certificate referred to in subsection (1) shall in no way participate in or assist with the abortion in question, and such a certificate, or such certificates issued for the same purpose, shall not be valid if issued by members of the same partnership or by persons in the employ of the same employer.

(b) The provisions of paragraph (a) shall not apply to the performance by any person of his functions in the service of the State. (3) At least one of the two medical practitioners referred to in subsection (1)-

(a) shall have practised as a medical practitioner for four years or more since the date of his registration as a medical practitioner in terms of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974);

(b) shall be a psychiatrist employed by the State, if the abortion is to be procured by virtue of the provisions of subsection (1) (b);

(c) shall be the district surgeon who examined the woman concerned if a complaint regarding the alleged unlawful carnal intercourse has been lodged with the Police, and the foetus is alleged to have been conceived in consequence of such unlawful carnal intercourse. [Para. (c) substituted by s. 2 (d) of Act 48 of 1982.]

Constitution of the Republic of South Africa Act 200 of 1993

8 Equality

(1) Every person shall have the right to equality before the law and to equal protection of the law.

(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.

(3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.

(b) . . .

(4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.

9 Life

Every person shall have the right to life.

10 Human dignity

Every person shall have the right to respect for and protection of his or her dignity.

13 Privacy

Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.

33 Limitation

(1) The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation-

(a) shall be permissible only to the extent that it is-

(i) reasonable; and

(ii) justifiable in an open and democratic society based on freedom and equality; and

(b) shall not negate the essential content of the right in question,

and provided further that any limitation to-

(aa) a right entrenched in section 10, 11, 12, 14 (1), 21, 25 or 30 (1) (d) or (e) or (2); or

(bb) a right entrenched in section 15, 16, 17, 18, 23 or 24, in so far as such right relates to free and fair political activity,

shall, in addition to being reasonable as required in paragraph (a) (i), also be necessary.

35 Interpretation

(1) In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.

(2) No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation.

98 Constitutional Court and its jurisdiction

(2) The Constitutional Court shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of this Constitution, including-

...

...

(c) any inquiry into the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution;

...

  (5) In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified.

  C:HEADS OF ARGUMENT OPPOSING SOUTH AFRICA'S RESTRICTIVE ABORTION LEGISLATION

APPLICANT'S HEADS OF ARGUMENT

THE ISSUE BEFORE THE COURT

Do s2 and s3 of the Abortion and Sterilisation Act 2 of 1975 unreasonably and unjustifiably infringe the applicant's constitutionally protected rights of privacy and dignity (s13 and s10) and right to equality (s8).

SUBMISSIONS IN GENERAL

Both the general prohibition (s2) and the listed grounds for a permissible abortion (s3) amount to prima facie infringement of fundamental rights: (a)the provisions are an infringement of the applicant's right to personal privacy and dignity.

(b) the provisions amount to an impairment of equality (s8), in particular, they amount to unfair discrimination on the basis of disability (s8(2)).

The infringement of personal privacy and equality is not saved by the limitations clause (s33(1)).

The fetus does not qualify as a 'person' in terms of s10 of the Bill of Rights.

  SUBMISSIONS IN PARTICULAR

1.s2 AND s3 INFRINGE FUNDAMENTAL RIGHTS.

1.1 Correct approach to the interpretation of fundamental rights:

A 'generous' and 'purposive' approach - S v Makwayane and Another 1995 (6) BCLR 665 (CC) at 676, 9 - 10 per Chaskalson P; Underlying values of the Constitution: s35(1).

1.2 The impugned legislation constitutes an infringement of the applicant's right to privacy and dignity.

Nature and scope of s10 and s13; Reading the right to privacy in conjunction with the right to dignity.

Legislative schemes which criminalise procuring an abortion are violation of human dignity: Morgentaler, Smoling and Scott v The Queen (1988) 44 DLR (3rd) (4th) at 385, per Wilson J.

Woman's decision whether or not to carry a pregnancy to term is an exercise of personal autonomy.

1.3 s2 and s3 amount to an impairment of equality, in particular, they constitute unfair discrimination on the basis of disability - s8(2). Pregnancy as a form of disability: S. Law, 'Rethinking Sex and the Constitution', University of Pennsylvania Law Review, vol 732 (2) 1984.

Nature and scope of equality: Laws which restrict access to abortion are laws which discriminate on the basis of a biological reality which only effects women.

Understanding equality: Rejection of the 'similarly situated' test;   Criticism of Geduldig v Aiello [1974] USSC 129; 417 US 484 (1974) per Stewart J and   General Electric Co v Gilbert 429 US 343 (1976) per Rehnquist J.

Criticism of the narrow approach: D. Meyerson, 'Sexual Equality and the law', SAJHR (9) 1993 at 237.

Importance of the dissimilar situation of men and women with respect to reproductive capacity: D. Johnsen, 'The Creation of Fetal Rights', Yale Law Journal, vol 95:577.

Canadian approach: Andrews v Law Society of B.C. 1989 CanLII 2 (SCC); 56 DLR (4th) 1 (1989) per McIntyre J, at 2; Express rejection of reasoning in Geduldig v Aiello and General Electric v Gilbert: Brooks v Canada Safeway Ltd 59 DLR (4th) 1989, per Dickson CJC, at 336.

Effect of the impugned legislation: forced motherhood - S. Law (supra, at 1017); Sex-speci S. Law (supra, at 1008).

1.4 The net effect of s2 and s3: infringement of privacy, dignity and equality.

Onus of proof: Khala v Minister of Safety and Security 1994 (4) SA 218 (W) per Myburgh J, at 228 F-G.

  2.THE INFRINGEMENT IS NOT SAVED BY s33(1)

2.1 Limitations of fundamental rights.

Balancing fundamental rights and principle of proportionality: S v Makwanyane (supra at 708, 104).

2.2 Limitations on a woman's Personal privacy.

2.2.1Protection of fetal life: J. Sarkin-Hughes, 'A Perspective on abortion legislation in SA's Bill of Right's Era', 1993 (56) THRHR, at 83; Impugned legislation premised on denial of women's dignity and personal privacy. Both direct and indirect unconstitutional effects relevant: Morgentaler, Smoling and Scott v The Queen, supra, per Dickson J, at 1.

2.2.2Protection of maternal health: (a) Backstreet abortions; (b)   Stigmatisation and procedural requirements - D. Cleminshaw, 'The South African Outlook', (1990) 120:1432 (Oct/Nov), at 312; (c) Dangers of abortion - J. Sarkin-Hughes (supra, at 90) and Cates (Cates, Smith, Rochat and Grimes, 'Mortality from Abortion and Childbirth: Are the statistics biased?', 248, JAMA 192 (1982)).

2.2.3Impugned legislation has not fulfilled its purpose: H. Okulu, 'The South African Outlook', (1990) 120:1432 (Oct/Nov), at 314).   Impugned legislation lacks an object rationally connected to its means employed: Marge Dyer, 'The South African Outlook', (1990) 120:1432 (Oct/Nov), at 303.

'Unwanted pregnancy': health risks associated with pregnancy and childbirth - Cates, 'Legal Abortion: The Public Health Record', 215 Sci. (1982) 1586, at 1587.

Subjective standards cannot be imposed on women generally.

International movement towards liberalizing access to abortion: Helen Rees, in Jagwanth, Schwikkard and Grant, 'Women and the Law', HSRC Publishers, 1994 at 242; 'Abortion Laws Worldwide', Speak, No. 62, at 14-15.

2.3 Limitations on a woman's right to equality.

2.3.1 Equality is dominant theme in Constitution: s8, s33(1), s35(1); Sex-specific impact of discrimination on basis of disability important to the issue of proportionality.

2.3.2 Substantive meaning of equality: Andrews v Law Society, supra, at 15. Racial, economic and sex-specific impact of the impugned legislation:   Sarkin-Hughes, supra at 376; Sarkin-Hughes, 'Choice and Informed Request: The answer to abortion', Stell LR 1990 3, 372 at 382. 2.3.3Abortion in context of reproductive freedom and sexual inequality: S. Law, supra, at 960 & 1028.

2.4. The fetus does not qualify as a constitutional person and consequently does not enjoy the protection of s10.

2.4.1Legal anomalies:

Abortion of a 'person' would be murder: South African Common Law with respect to killing an innocent person to protect another; the fetus cannot be a person.

2.4.2 Scientific Argument - Development as a continuous progression:

Persons are the result of both chance and planning: L. Tribe, 'Abortion: The Clash of The Absolutes', W.W. Norton & Co.,1990, at 117.

Process of fertilization and embryonic development is continuous.

2.4.3Right to Life argument unnecessary:

Concede state has an interest in protecting potential life after 20 weeks; Rejection of inherent rights in other jurisdictions - R. Dworkin, 'Life's Dominion: An Argument about Abortion and Euthanasia', HarperCollins, 1993, at 60 - 89. Brain Birth and Viability: Sarkin-Hughes, supra, at 380; Technology and viability - Roe v Wade [1973] USSC 43; 410 US 113 (1972) per Blackmun J.

2.4.4Pandora's box:

Potential of pervasive limitations on women's autonomy and equality.

2.4.5Preferable approach.

Question of fetal personality distracts us from the real question:   Laurence Tribe, supra, at 130.

Fetal life is very different from any other form of life in that it is wholly dependent on the mother - S. Law, supra, at 1023.

Recognition of indigenous value systems: Ubuntu - S v Makwanyane, per Justice Mokgoro, supra, at 771 [307], 772 [308], 773 [311].

Human dignity at the core of the developing South African rights jurisprudence.

3.I humbly pray that the application be upheld and that the court declare s2 and s3 of the Act unconstitutional: furthermore, that the court make a declaratory order as to the applicant's right to an abortion, and that the court make an order in terms of s98(7) of the Constitution barring the state and all its organs from instituting criminal proceeding against the applicant. Finally, I pray that costs be awarded to the applicant.

SIGNED THIS 6th DAY OF AUGUST, 1995, AT PIETERMARITZBURG.

M.B. McGREGOR

COUNSEL FOR THE APPLICANT

CHAMBERS

PIETERMARITZBURG

  D:ARGUMENT OPPOSING THE CONSTITUTIONALITY OF SOUTH AFRICA'S RESTRICTIVE ABORTION LEGISLATION

APPLICANT'S ARGUMENT

THE ISSUE BEFORE THE COURT:Whether s2 and s3 of the Abortion and Sterilisation Act 2 of 1975 unreasonably and unjustifiably infringe the applicant's constitutionally protected rights of privacy and dignity and her right to equality.

SUBMISSIONS IN GENERAL

Both the general prohibition (s2) and the listed grounds for a permissible abortion (s3) amount to prima facie infringement of fundamental rights:

(a)the provisions are an infringement of a woman's right to personal privacy and dignity.

(b) the provisions amount to an impairment of equality, in particular, they amount to unfair discrimination on the basis of disability (s8(2)).

The infringement of personal privacy and equality is not saved by the limitations clause (s33(1)).

The fetus does not qualify as a 'person' in terms of s10 of the Bill of Rights.

SUBMISSIONS IN PARTICULAR

1.s2 AND s3 INFRINGE FUNDAMENTAL RIGHTS.

1.1Submitted that both sections amount to an infringement of fundamental rights. The correct approach to the interpretation of fundamental rights has been authoritatively laid down in the Constitutional court's judgment in S v Makwanyane. Justice Chaskalson quoted with approval the 'generous' and 'purposive' approach.   Chaskalson J held that Constitution must be construed in a way which 'secures for individuals the full measure of its protection'.In addition, the court must, by virtue of s35(1) of the Constitution, have regard to 'the values which underlie an open and democratic society based on freedom and equality'.

1.2.s2 and s3 constitute an infringement of the applicant's right to privacy and dignity. s10 provides that 'Every person shall have the right to respect for and protection of his or her dignity'. Read in conjunction with the right to personal privacy guaranteed in s13, it is submitted that our Constitution recognises an 'inviolable sphere of privacy beyond the reach of public authority'. In other words, a recognition that certain matters which arise in this private sphere of autonomy cannot be judged upon or regulated by the state.

Submitted that decisions about marriage, child-rearing, family size or contraception are widely acknowledged as falling beyond the reach of the state, being the province of individual conscience and morality.   I submit the decision of a woman to choose whether or not to carry a pregnancy to term should be treated analogously.

Indeed, submitted that the impugned legislation prima facie infringes a woman's personal privacy and dignity by either prohibiting access to an abortion completely or by taking a crucial personal decision out of her hands and placing it at the discretion of predominantly conservative medical personnel and state officials. Furthermore, the effect of the bureaucratic and cumbersome procedures has actually rendered access to legal abortion all but impossible for many women.   In Morgentaler Wilson J held that a legislative scheme which criminalised procuring an abortion violated human dignity, in particular the right to autonomously make fundamental personal decisions. Submitted that s2 and s3 both in their content and in their effect, impinge on a woman's ability to direct her own reproductive capacity as a competent decision-maker. Submitted, it is imperative we understand the right to privacy and human dignity as safeguarding an organic right to personal autonomy, as such, laws which restrict or deny women from making a decisions about their reproductive capacity infringe on that sphere of autonomy.

1.3s2 and s3 amount to an impairment of equality, in particular, they constitute unfair discrimination on the basis of disability (s8(2)).

It is submitted that pregnancy falls within the scope of 'disability' enumerated in s8(2). Pregnancy involves burdens of amongst other things health, mobility, independence and sometimes life itself. My Lords, these hardships are borne by pregnant women alone while men will by definition never find themselves faced with the reality of being pregnant.

Submitted that laws which restrict access to abortion are laws which discriminate on the basis of a biological reality which only effects women.

The legislation only forces women to carry their pregnancy to term if they do not qualify for a legal abortion, while men experience none of the pervasive disruptions women are legally obliged to endure.   Furthermore, it has already been submitted that the cumbersome procedures the Act provides for, in practice restrict access to abortion so as to make it all but impossible to procure.

Submitted, if we are to take equality seriously, the court must look to developing a South African rights jurisprudence which embraces a substantive rather than a formalistic notion of equality. The court should not follow the American law in this regard. The 'similarly situated' test has severe drawbacks. It was used by the courts in Geduldig v Aiello and General Electric Co v Gilbert to deny pregnant women disability benefits because, on the similarly situated reasoning, discrimination on the basis of pregnancy was held not to be sex-discrimination. But the test is not only unpalatable because it has had specific effects in the United States, it is also premised on a formalistic and limited conception of equality unsuited to our context, in particular to the values which underlie our constitution.

Meyerson has criticised this narrow approach which requires that both men and women be treated identically regardless of the reality of biological difference. She argues that 'the approach is complacent about present reality, involving a feminism which insists women who display masculine behaviour are entitled to equal rewards as men, offering nothing to conventionally feminine women.' The real issue I submit is that it is precisely the dissimilar situation of men and women with respect to reproductive capacity that has been used to 'justify a system of male dominance' to paraphrase Dawn Johnsen.

Submit that the Canadian approach may be instructive for the court:   In Andrews v Law Society McIntyre J held that full equality necessitates that the court's 'main concern [be] the impact of the law on the individual or group concerned.'  

Submitted that the learned judge's definition of discrimination warrants the court's attention - 'Discrimination may be described as a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group, not imposed on others, or which limits access to opportunities, benefits and advantages available to other members of society.'

Indeed, the reasoning of the American cases of Geduldig and General Electric has been expressly rejected in Canada in Brooks v Canada Safeway Ltd per Dickson CJC.

Submitted that legislation discriminating against pregnant women qualifies as discrimination, in terms of the Canadian definition and in terms of our own Bill of Rights - That is to say, pregnant women are group unequally treated on the basis of a disability affecting only that group. The impugned legislation has the effect of legally forcing women to become mothers. According to Sylvia Law, forced motherhood affects a woman's ability to 'plan [her life], sustain relationships with others and to contribute through career work and social life.'

But these submissions are not intended to divorce the question of abortion from the issue of sexual inequality. On the contrary it is submitted that laws restricting access to abortion, have a sex- specific impact in that men are not subjected to disabilities similar to those I have mentioned.

Submitted that the effect the legislation is that a women who would otherwise choose not to continue their pregnancies are effectively barred from doing work, furthering their education and planning their futures, impediments men never have to face- a discriminatory effect which denies women equality.

Submitted there is much force in Sylvia Law's argument that forced motherhood has historically been central to the oppression of women worldwide.

1.4 Submitted that the net effect of the impugned legislation is an glaring infringement a woman's privacy and dignity by restricting her autonomy in both her professional and personal life and also her right to equality by unfairly discriminating against her disability, making it impossible for her to participate as a full member of society.   Submitted further that the onus of proving that these infringements are nevertheless saved by s33(1) of the Constitution lies with the respondent - Khala v Minister of Safety and Security.

  2.THE LIMITATION IS NOT SAVED BY s33(1)

2.1Justice Chaskalson in his judgment in S v Makwanyane held that the balancing of constitutional rights involves a 'weighing up of competing values, and ultimately an assessment based on proportionality....[relevant factors being] the nature of the right that is limited and the importance of that right to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; [and] the extent of the limitation [and] its efficacy.

Submitted that on this reasoning, in order for a limitation to be reasonable the state should at the very least show that the limitation is capable of achieving ter that in order for a limitation to also be justifiable in an open and democratic society based on freedom and equality it will have to be consonant with the underlying values of the constitution.

2.2Limitations on a woman's Personal privacy and dignity:  

Submitted that the right to personal privacy and dignity are central to the human rights character of our Constitution and the impugned legislation is both unreasonable and unjustifiable for two reasons:

2.2.1Firstly, if the purpose of the impugned legislation is to protect fetal life, statistics relating to abortion in South Africa are revealing: According to Jeremy Sarkin-Hughes between 100 000 and 500 000 illegal abortions are performed annually in South Africa; of those, legal abortions account for less than one percent. In addition the number of operations for the removal of the residues of pregnancy was over 38 000 in 1989/90.

This is not to suggest that the Act should simply be better policed, but rather a recognition that the legislation itself was never appropriate, that it was premised on a denial of women's dignity and personal privacy - values which the court now has an opportunity and obligation to affirm and recognise the humiliation, stigmatisation and suffering millions of South African women have suffered and continue to suffer. Should a rational society makes laws it cannot hope to enforce, or laws which are clearly premised upon an unconstitutional motive.

Submitted, in both content and effect, the impugned legislation has not even marginally protected fetal life. [Both the content and effect of legislation can have unconstitutional effects - Morgentaler]

2.2.1Secondly, if the purpose of the impugned legislation is to provide for safe abortions, in other words that womens' health is the prime concern, this purpose has not been realised for two reasons:

1.the number of illegal abortions performed in South Africa annually, not to mention around the rest of the world, is a clear indication of an alarming large number of women at great risk in unclean, unprofessional backstreet clinics - indeed many women lose their lives during such procedures.

2.even those women who qualify for a legal abortion nevertheless resort to the agony of the backstreet either out of fear of stigmatisation, simply out of ignorance of the Act itself or because the cumbersome technical requirements of the Act themselves severely limit access to abortion. For example, according to Dot Cleminshaw, the requirement's of three doctor's certification, is not only unnecessary but also causes dangerous delays and a gross invasion of privacy. According to Sarkin-Hughes and Cates, modern studies have shown that at present, a properly performed abortion is approx. between 7 - 25 times less likely to result in death or serious complication than carrying a pregnancy to term.

2.2.3Submit that the impugned legislation can hardly be said to have fulfilled its purpose. The effect of the Act has been to abandon tens of thousands of women who either did not qualify for an abortion in terms of s3 or could not overcome the procedural requirements, leaving them with a physically life-threatening and psychologically destructive alternative: backstreet abortion where in most cases money is the prime interest, not the woman's health -Henry Okulu.

According to Marge Dyer the current legislation lacks a rational objective, not only because of the effects of the provisions of the Act I have referred to, but also because it leads to inconsistencies that simply do not measure up to how women experience themselves and the world. She asks: 'How do we justify allowing abortion on grounds of rape (where a rape fetus is just like any other) but not where a black women in Soweto falls pregnant and is abandoned by her boyfriend or where a women who has eight children falls pregnant again?'.

It is submitted that the issue of abortion is not about what grounds justify abortion but is instead a much wider issue involving a woman's right to autonomously make choices about her procreative freedom.

Submitted that, at until 20 weeks (the Sarkin-Hughes formulation dealt with below), the only ground for abortion which is constitutionally sound is that of an 'unwanted pregnancy'. Submitted that there is no logical ground for excluding reasons relating to finances, loss of personal freedom, a jeopardised education or career, or simply a choice no to give birth. In addition, according to Cates the health risks associated with pregnancy and childbirth are greatly increased when the pregnancy is unwanted.

According to Helen Rees to continue with the law as it now stands would not only deny the international movement towards liberalizing access to abortion but would '...ignore the major social and health implications that illegal abortions carry with them'.

A dignity and privacy doctrine which places the importance of individual freedom at its centre cannot tolerate the effects of the impugned legislation - in essence the right to privacy and dignity demand that the court recognise each person as a responsible individual - no matter how morally objectionable abortion may be to some, subjective standards cannot be imposed on women generally.

2.3 Limitations on a woman's right to equality.

2.3.1Submitted that equality is dominant theme running through the constitution. It is mentioned expressly three times: the express protection of s8, the limitations clause s33(1) ('in an open and democratic society based on freedom and equality') and s35(1) which enjoins the court to take cognisance of the underlying values of the constitution. Submitted that when considering the impugned legislation as unfair discrimination on the basis of disability (pregnancy), the sex-specific impact of such discrimination is important to the issue of proportionality.

2.3.2In Andrews v Law Society McIntyre J held: 'The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognised at law as human beings equally deserving of concern, respect and consideration'.

The statistics I have quoted [Sarkin-Hughes] are also illustrative of the racial and economic lines which delineate the actual potential to abort. In other words, not only has the legislation not had the effect of decreasing the frequency of abortions, it has manifested a clear economic, racial and sex-specific impact, ie. the vast majority of women who backstreet abort in South Africa are poor, black women. Those who would have us believe that mothers who wish to abort should rather place their unborn children up for adoption are usually those most secluded from the pain and realities of society.The fact that   black children are rarely adopted in South Africa is a striking example of how the adoption choice in South Africa is a farce, and how the moralising of pro-lifers often ignore the suffering of both mothers and scores of abandoned babies. [Sarkin-Hughes]  

Submitted, the court should be wary of emotive moral arguments in the guise of legal analyses. The core reality id that one of the specific effects of discrimination on the grounds of the disability of pregnancy, is the continuing oppression of poor black women.

2.3.3The abortion question must also be seen within the broader context of reproductive freedom and therefore of sexual equality. The state's interest in the protection of life, whether it be that of the mother or that of potential fetal life, can be less prohibitively pursued by investing in family planning programmes, contraception facilities and general sex-education - not by overriding a woman's fundamental rights of privacy, dignity and equality.

Sylvia Law argues that 'Legal structures that support the dominance of men and subservience of women are fundamentally inconsistent with the constitutional ideals of individual worth and equality of opportunity [and] control of reproduction is the sine qua non of womens' capacity to live as equal people.' (at 1028).

Submitted that at least up to the point of 20 weeks, even though substantial sectors of society, be they patriarchal men, or religious followers or simply moralists, the demands of equality and the values underlying our constitution must surely prohibit the state from regulating access to a safe abortion. Although women are biologically bound to bear the disabilities of pregnancy, society can through the law, either exacerbate or moderate the costs of these burdens.   Submitted that the impugned legislation is neither a proportional nor justifiable limitation on the right to equality.

  2.4.The fetus does not qualify as a constitutional person and consequently does not enjoy the protection of s10.

2.4.1Legal Paradox.

If murdering an unborn person who innocently poses a threat to a woman's health is acceptable, what would prevent us from simply murdering other individuals or groups who cause society suffering? (eg. HIV positive patients, carriers of contagious diseases etc.) The only solution is to avoid the dangers of such a legal paradox and accept that the fetus is not a person.

2.4.2Scientific Argument - Development as a continuous progression.

Most scientific pro-life arguments claim life begins at conception since a separate human person comes into existence when the 46 chromosomes which determine a person's distinct, personality are all present in a fertilised egg. However, not only is it recognised that our distinct persons are the result of both chance and planning [Laurence Tribe] but even the process of fertilisation itself is not a distinct event. It may take hours for a sperm to fertilize an egg and in the case of twins, both fetuses develop from the original one embryo.

Submitted that the whole process of fertilization and embryonic development is a continuous one. It is therefore unacceptable to begin attributing something as ethereal as legal personality to a fetus.   (c)It is an unnecessary argument

Submitted that it is not necessary to argue that the fetus has a right to life. Submitted that it is acceptable to draw distinctions on the basis of the state's interest in protecting potential life. Submitted the point at which the state develops a legitimate interest in regulating abortion is at 20 weeks - based on a combination of theories of brain birth (the commencement of neo-cortical activity) and of viability (the point at which the fetus can exist outside of the womb independently) [ Sarkin-Hughes ].

[In fact, many jurisdictions have rejected the inherent rights argument, choosing to regulate abortion on the basis of it being an affront to the value or sanctity of human life - R. Dworkin]

[That the point of viability is continually shifting is a flawed notion - it has remained at approx. 22 weeks as it was when Roe v Wade [1973] USSC 43; (410 US 113 (1972) per Blackmun J.) was decided. What has happened is that improved technology has meant a higher proportion of 22 week old babies are now capable of surviving.]

(d)Pandora's box:

If the court were to recognise fetal rights to life, it could potentially open a pandora's box of pervasive limitations on womens' autonomy and equality. What would prevent legislation requiring, in the interests of minimising risk of injury to the fetus, that pregnant women avoid active lifestyles, avoid smoking, riding in a car, skiing or living at high altitudes. Submitted it is not implausible that such legislation could be extended even to potentially pregnant women.   All these ubiquitous inroads on the woman's fundamental rights would conceivably be justified as protecting the fetus' right to life.

(e)Preferable approach.

According to Laurence Tribe the question of fetal personality distracts us from the real question involved in abortion: '..whether the state may force a woman to incubate an embryo, and to serve as its life support system against her will...forced motherhood does not only involve asking a mother to refrain from killing another but involves asking her to make a profound affirmative sacrifice.'

Fetal life is very different from any other form of life in that it is wholly dependent on the mother and only the mother (S. Law ) [In fact both the Canadian and United States courts have rejected the notion of life from conception - Roe v Wade (supra) & Morgentaler (supra).]

Submitted further that the Constitutional Court has recognised the importance of indigenous value systems, in particular: Ubuntu - In S v Makwanyane Justice Mokgoro reflected on the need to develop a 'South African rights jurisprudence' and accordingly expressed Ubuntu as having at its core respect for human dignity. Justice Mokgoro recognized the need to 'revive the value of human dignity in South Africa'.

Submitted that respect for human dignity lies at the core of the developing South African rights jurisprudence, it is the core value which justifies respect for womens' personal privacy and the need to eradicate gender inequality. 4.I humbly pray that the application be upheld and that the court declare s2 and s3 of the Act unconstitutional: furthermore, that the court make a declaratory order as to the applicant's right to an abortion, and that the court make an order in terms of s98(7) of the Constitution barring the state and all its organs from instituting criminal proceeding against the applicant. Finally, I pray that costs be awarded to the applicant.

  E:HEADS OF ARGUMENT DEFENDING THE CONSTITUTIONALITY OF SOUTH AFRICA'S RESTRICTIVE ABORTION LEGISLATION

RESPONDENT'S HEADS OF ARGUMENT

THE ISSUES BEFORE THE COURT

Are s2 and s3 of the Abortion and Sterilisation Act 2 of 1975 inconsistent with s8, s10 and s13 of the Constitution of the Republic of South Africa Act 200 of 1993, and therefore unconstitutional?

A number of ancillary issues are raised by this general constitutional question: is the fetus a 'person' for the purposes of the Constitution, and hence the bearer of rights? If so, and assuming provisionally that Applicant's rights in terms of s8, s10 and s13 are infringed, do the rights of the fetus and other interested parties not trump Applicant's? If the fetus is not a bearer of rights then the validity of the above assumption (that Applicant's rights are in fact infringed) must be examined. Finally, even if it is determined that s2 and s3 do violate s8, s10 and s13 of the Constitution, there remains the can be salvaged in terms of s33(1) of the Constitution.  

If the court finds that:

(1)the fetus is a bearer of constitutional rights and that these rights and those of other interested parties take precedence over Applicant's rights to equality, dignity and privacy, or

(2)Applicant's rights are not infringed by the impugned legislation, or

(3)there is an infringement of these rights, but it is permissible in terms of s33(1) of the Constitution then it is respectfully submitted that the constitutional question must be answered in the negative.

SUBMISSIONS IN GENERAL

Primary Argument

The fetus is a 'person' and hence a bearer of constitutional rights.   Applicant's rights to equality, dignity and privacy, assuming they are infringed by the impugned legislation, are nevertheless trumped by the rights of the fetus and other interested parties.

Secondary Argument

Alternatively, if the fetus is not a bearer of rights, the impugned legislation remains valid because it does not infringe Applicant's rights to equality, dignity and privacy.

Tertiary Argument

Alternatively, even if the fetus has no rights or has rights but Applicant's rights prevail over them, and even if Applicant's rights are infringed by the impugned legislation - notwithstanding, the legislation is valid because the limitation it imposes upon the rights in question is sanctioned in terms of the limitations clause.

SUBMISSIONS IN PARTICULAR

1.Primary Argument

1.1 The fetus is a 'person' and hence a bearer of constitutional rights.

1.1.1Quote: Milton, Paradise Lost, Book 8.

1.1.2Constitution: Constitution of the Republic of South Africa Act 200 of 1993.

1.1.3Mr. Justice Blackmun's dictum: Roe v Wade [1973] USSC 43; 410 US 113 (1973) per Blackmun J at 159.

1.1.4Only within abortion controversy is fact of human life from conception questioned: Destro R A 'Abortion and the Constitution: The Need for a Life-Protective Amendment' (1975) 63 California Law Review 1250 at 1254; Editorial, 'A New Ethic for Medicine and Society' (September, 1970) California Medicine at 68, cited in Destro (Supra) 1254n24.

1.1.5Critical stages of development: Flower M J 'Coming into Being: The Prenatal Development of Humans', in Butler and Walbert, D F (Eds) Abortion, Medicine, and the Law 4 ed (1992) 445-6; du Toit D 'Again: "When Does Life Begin?"', in van Niekerk A (Ed) The Status of Prenatal Life (1991) 22-3. Viability and brain birth suggested as appropriate for South Africa: Sarkin-Hughes J 'A Perspective on Abortion Legislation in South Africa's Bill of Rights Era' (1993) 56 THRHR 83 at 90; Lupton M L 'The Legal Status of the Embryo' (1988) Acta Juridica 197 at 214. Brain birth as a marker is flawed: du Toit (Supra) 23; Sarkin-Hughes J 'Choice and Informed Request: The Answer to Abortion' (1990) 1 Stellenbosch LR 372 at 378-9; Flower (Supra) 443. Viability as marker is tenuous: Tribe L H 'The Supreme Court 1972 Term' (1973) 87 Harvard LR 27, cited in Olmsdahl M C J 'Abortion and the Husband's Consent' (1972-76) 1 Natal Univ LR 213 at 220n59; Swanepoel A 'Aborsie: Nuwe Insigte, Nuwe Argumente' (1988) 28 Tydskrif vir Geesteswetenskappe 41 at 42; Fortin J E S 'Legal Protection for the Unborn Child' (1988) 51 Modern LR 54 at 67. Viability in 395g infant younger than 20wks: Destro (Supra) 1312. Selection of any degree of development as measure of worth is arbitrary: Grisez G Abortion: the Myths, the Realities, and the Arguments (1970) 304-5.   Personhood is characterised by incompleteness: van Niekerk A 'Life and Personhood: A Philosophical Exploration', in van Niekerk A (Ed) The Status of Prenatal Life (1991) 36, 39.

1.1.6Willingness to kill what may be a person is willingness to kill a person: Grisez (Supra) 306.

1.1.7Prejudice against the unborn - "prenatalism": Grisez (Supra) 467-70. Characteristics of discriminatory distinctions: Andrews v Law Society of B.C. 1989 CanLII 2 (SCC); (1989) 56 D.L.R. (4th) 1 per La Forest J at 39. Age discrimination: s8(2) of the Constitution of the Republic of South Africa Act 200 of 1993. Dicta from the death penalty judgment: S v Makwanyane and Another 1995 (6) BCLR 665 (CC) per Chaskalson P at 703H-I/J; Furman v Georgia [1972] USSC 170; 408 US 238 (1972) per Brennan J at 272-3, cited in S v Makwayane and Another (Supra) per O'Regan J at 778A-B; S v Makwanyane and Another (Supra) per O'Regan J at 778G/H-H. Quote on Nazi rationalisation: Pulvertaft R J V 'The Individual and the Group in Modern Medicine' (1952) 2 The Lancet 841; cited in Adams A M (Chairman) 'Report of the Human Fetal Tissue Transplantation Research Panel', in Butler and Walbert (Supra) 795.

1.1.8Legal authority for fetal rights. Few international human rights charters accord rights to the fetus from conception: du Plessis L M 'Whither Capital Punishment and Abortion under South Africa's Transitional Constitution?' (1994) 7 SACJ 145 at 158. Not bound to follow foreign jurisprudence: S v Makwayane and Another (Supra) per Chaskalson P at 687F/G-688B.

1.1.8.1SA law. Abortion proscribed in early indigenous law: Maclean J C A Compendium of Kafir Laws and Customs (1858) 64.   Judicial consideration of extending the nasciturus doctrine: G v Superintendent, Groote Schuur Hospital, and Others 1993 (2) SA 255 (C) per Seligson AJ at 259C-G; du Plessis L M 'Jurisprudential Reflections on the Status of Unborn Life' (1990) 1 Tydskrif vir dir Suid Afrikaanse Reg 44 at 49.

1.1.8.2US law. Trend towards conferring rights on fetuses: Johnsen D E 'The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection' (1986) 95 Yale LJ 599 at 602, 604-5, 605n27.

1.1.8.3German law. Fetus has right to life from conception: du Plessis L M 'Whither Capital Punishment and Abortion under South Africa's Transitional Constitution?' (1994) 7 SACJ 145 at 159.

1.1.8.4Embryo experimentation. Legal controls illogical if abortion is permitted: Clarke L 'Abortion: A Rights Issue?', in Lee R and Morgan D (Eds) Birthrights: Law and Ethics at the Beginnings of Life (1989) 159; Lupton (Supra) 200-2; Dr Mary Tighe, The Times, 24 July 1984, cited in Fortin (Supra) 68.

1.1.9Term "person" should be given broadest possible meaning: Destro (Supra) 1334.

1.2Applicant's rights to equality, dignity and privacy, assuming they are infringed by the impugned legislation, are nevertheless trumped by the rights of the fetus and other interested parties.

1.2.1Quote on women's emancipation set against rights of others: Callahan D Abortion: Law, Choice and Morality (1970) 464.

1.2.2Absolute right not to get pregnant: McIntosh G (Ex-MP for the DP), Personal Communication, 29 July 1995.

1.2.3Guidelines for adjudication of disputes between private individuals involving the Constitution: Gardener v Whitaker 1994 (5) BCLR 19 (E) per Froneman J at 37B-D.

1.2.4Right to Life: s9 of the Constitution of the Republic of South Africa Act 200 of 1993. Right to Dignity: s10 of the Constitution of the Republic of South Africa Act 200 of 1993.

1.2.5Respect for Life and Dignity are values of highest order - a clear and convincing case must be made out to justify destroying them: S v Makwayane and Another (Supra) per Chaskalson P at 711H-712A. 1.2.6.1Other fundamental rights rank below the right to life: S v Makwanyane and Another (Supra) per Kriegler J at 749G-H.

1.2.6.2Life and dignity two sides of same coin: S v Makwanyane and Another (Supra) per Mokgoro J at 773D/E. Dignity of fetus violated by manner in which abortions are performed: Swanepoel (Supra) 42-3; Everett Koop, C (U.S. Surgeon General) 'The U.S. Surgeon General's Report on the Health Effects of Abortion', in Butler and Walbert (Supra) at 736-7. Possibility of research on aborted fetuses violates their dignity.

  2. Secondary Argument

2.1 The impugned legislation does not infringe Applicant's right to equality.

2.1.1Right to Equality: s8 of the Constitution of the Republic of South Africa Act 200 of 1993.

2.1.2Impugned legislation does not discriminate on grounds of sex: DeCrow K Sexist Justice (1975) 312, cited in Kingdom E 'Birthrights: Equal or Special?', in Lee and Morgan (Supra) 20-1.

2.1.3Impugned legislation rationally discriminates between pregnant and nonpregnant people. Test used: Mfolo and Others v Minister of Education, Bophuthatswana 1994 (1) BCLR 136 (B) per Comrie J at 139G/H-141I.

2.2The impugned legislation does not infringe Applicant's right to dignity.

2.2.1Right to Dignity: s10 of the Constitution of the Republic of South Africa Act 200 of 1993.

2.2.2Abortion is a denial of women's nature: Smith Abortion as a Feminist Concern 81, 84, cited in Cunningham P C and Forsythe C D 'Is Abortion the "First Right" for Women?: Some consequences of Legal Abortion', in Butler and Walbert (Supra) 111.

2.2.319th Century feminists opposed abortion: Cunningham and Forsythe (Supra) 113.

2.2.4Abortion has not benefited women: Cunningham and Forsythe (Supra) 117, 157.

2.3The impugned legislation does not infringe Applicant's right to privacy.

2.3.1Right to Privacy: s13 of the Constitution of the Republic of South Africa Act 200 of 1993.

2.3.2Definition of privacy: Burchell J Principles of Delict (1993) 207.

2.3.3Abortion not a purely private matter: Destro (Supra) 1261-2.

2.3.4Privacy not freedom to live life without governmental interference: Ely J H 'The Wages of Crying Wolf: A Comment on Roe v. Wade' (1973) 82 Yale LJ 920 at 932-3.

3.Tertiary Argument

Even if Applicant's rights are infringed, the impugned legislation remains valid because:

3.1The limitation it imposes upon the rights in question is reasonable and justifiable in an open and democratic society based on freedom and equality.

3.1.1Limitation of rights: s33 of the Constitution of the Republic of South Africa Act 200 of 1993.

3.1.2Guidelines for applying limitations clause: S v Makwanyane and Another (Supra) per Chaskalson P at 708C/D-G.

3.1.3Primary State objectives. Protecting fetus & discouraging discriminatory value judgments: Callahan D 'Abortion: Some Ethical Issues', in Butler and Walbert (Supra) 701-2.

3.1.4Health concerns. Low incidence of mental health problems if pregnancy not terminated: Everett Koop C (U.S. Surgeon General) : Letter to the President, 9 January 1989, in Butler and Walbert (Supra) at 733. Psychological sequelae of abortion: Nash E S 'Teenage Pregnancy - Need a Child Bear a Child?'(1990) South African Medical Journal 148. Legalising abortion results in an increase in backstreet abortions: Middleton A J 'Abortion' 1972 (Sep) De Rebus Procuratoriis 397 at 400. Ways other than legalising abortion on request of reducing the number of backstreet abortions: Clarke (Supra) 168. Many illegal abortions possibly result from fragmentation of families in wake of homelands policies. Discussion of such fragmentation: Cope J A Matter of Choice: Abortion Law Reform in Apartheid South Africa (1993) 26-7. Even legal abortions are not safe: Wynn M and Wynn A 'Some consequences of Induced Abortion to Children Born Subsequently' (1973), cited in Olmsdahl (Supra) 218n48, 219; Cunningham and Forsythe (Supra) 132n183, 133nn184-188.

3.1.5Unsavoury clinic practices: Cunningham and Forsythe (Supra) at 133nn189-192.

3.1.6Miscellaneous. Abortion not 'indispensable' for population control. Abortion as contraception leads to aberrations: McIntosh G (Ex-MP for the DP), Personal Communication, 4 August 1995. State interest in encouraging relationships of mutual responsibility between women and men. State interest in discouraging promiscuity.

3.1.7Reasonable or unreasonable impact on people affected by the legislation must be examined: Hunter v Southam (1985) 14 C.C.C. (3d) 97 SCC per Dickson J at 106.

3.2The impugned legislation imposes a necessary limitation of Applicant's right to dignity.

3.2.1Limitation of Applicant's right to dignity must be necessary: s 33(1)(aa) of the Constitution of the Republic of South Africa Act 200 of 1993.

3.3The impugned legislation does not impose a limitation which negates the essential content of Applicant's rights to equality, dignity and privacy.

3.3.1Limitation of a right shall not negate the essential content of the right: s33(1)(b) of the Constitution of the Republic of South Africa Act 200 of 1993.

3.3.2Subjective and objective negation of the essential content of rights: S v Makwayane and Another (Supra) per Chaskalson P at 718G- G/H.

3.3.3Incremental invasion of rights: S v Makwanyane (Supra) per Mahomed J at 768D/E-E.

  4.Closing Submission

4.1Abortion Act not "apartheid measure": Strauss S A 'Abortion Law Reform' (1995) 112 SALJ 195 at 195.

4.2Proposition of fetal humanity and equality not conservative but radical: Callahan D 'Abortion: Some Ethical Issues', in Butler and Walbert (Supra) 702.

On these grounds Respondent humbly prays that the Moot Court shall dismiss the application. It is further prayed that Applicant be ordered to pay the costs of the application.

SIGNED THIS 6th DAY OF AUGUST, 1995, AT PIETERMARITZBURG.

R.M.P. RS

PIETERMARITZBURG

  F:ARGUMENT DEFENDING THE CONSTITUTIONALITY OF SOUTH AFRICA'S RESTRICTIVE ABORTION LEGISLATION

RESPONDENT'S ARGUMENT

SUBMISSIONS IN GENERAL

Primary Argument

The fetus is a 'person' and hence a bearer of constitutional rights.   Applicant's rights to equality, dignity and privacy, assuming they are infringed by the impugned legislation, are nevertheless trumped by the rights of the fetus and other interested parties.

Secondary Argument

Alternatively, if the fetus is not a bearer of rights, the impugned legislation remains valid because it does not infringe Applicant's rights to equality, dignity and privacy.

Tertiary Argument

Alternatively, even if the fetus has no rights or has rights but Applicant's rights prevail over them, and even if Applicant's rights are infringed by the impugned legislation - notwithstanding, the legislation is valid because the limitation it imposes upon the rights in question is sanctioned in terms of the limitations clause.

1.Primary Argument

1.1The fetus is a 'person' and hence a bearer of constitutional rights.

For man to tell how human Life began is hard: for who himself beginning knew? Milton put this question in Paradise Lost, but the debate about when human life begins still rumbles on. Justice Blackmun in Roe versus Wade decided that he need not resolve the difficult question.

However I submit that the debate about when human life begins is critical to the issue before us, because of its relevance to whether or not a fetus is a rights-bearing person in terms of the Constitution. Rights in the interim South African Constitution are afforded to persons, yet nowhere is the word person defined.

It is my contention that the fetus is indeed a person protected by the constitution.

1.1.4Only within abortion controversy is fact of human life from conception questioned: Destro, California Medicine. The answer to the difficult question of when life begins is actually a matter of common understanding. The increasing sophistication of the science of biology has made it impossible to deny that biologically, human life exists before birth. Destro has pointed out that it is only within the context of the abortion controversy that this basic fact is called into question. The official journal of the California Medical Association noted that there is a "curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra- uterine, until death ... The very considerable semantic gymnastics which are required to rationalise abortion as anything but the taking of human life would be ludicrous if not often put forth under socially impeccable auspices."

1.1.5Critical stages of development: Flower, du Toit

One manifestation of this semantic can of worms is the battery of critical stages in the development of the fetus which different people have suggested as marking the beginning of human life.

These include the emergence of developmental individuality and the so- called 'primitive streak' at 2 weeks, the emergence of motility at 6-7 weeks, viability at approximately 20 weeks, the first neocortical circuitry and connection to the bodily sensorium (or brain birth) at 20-23 weeks, morphophysiology and sleep/wake cycles similar to full- term new born at 28-32 weeks. Psychological terms and descriptions, like the ability to function in relationships, have also been used.

1.1.5Viability and brain birth suggested as appropriate for South Africa: Sarkin-Hughes, Lupton.

Academics Lupton and Sarkin-Hughes have suggested viability and brain birth as appropriate cut off points for a South African abortion law, and my learned friend has adopted their approach. I would like to challenge this suggestion.

1.1.5Brain birth as a marker is flawed: du Toit, Flower.

Brain birth which is accompanied by the production of EEG waves is seen to be significant because it marks the appearance of our higher intelligence and this supposedly is what distinguishes us from animals.

----------------------------------------------------------------------

However, although neocortical circuitry required for human higher intelligence appears only at 20 weeks, the brain actually begins to direct the operation of bodily systems and organs at 8 wks. In fact, electrical activity has been observed as early as the 5th week, probably associated with embryonic brainstem function. The question has been asked whether it would be possible to measure electrical activity at an earlier stage if we had finer instruments.

----------------------------------------------------------------------

1.1.5Viability as marker is tenuous: Tribe, Swanepoel, Fortin

The concept of viability is in fact very tenuous - life always requires a favourable environment. How viable is an adult at the South Pole? What of those people who depend on kidney machines, yet whose rights are in no sense diminished by this disability. In fact, viability is really just a question of the degree of outside support necessary to preserve life. As medicine progresses the stage of viability will move closer and closer to the time of conception, until it coincides with conception with the development of an artificial placenta. The viability guidelines laid down in Roe versus Wade had already become obsolete by 1975 when an infant weighing 395 grams and less than 20 weeks old, survived.

At present, the viability of a fetus in essence depends on whether its lungs are inflatable thereby allowing it to breathe. This, as Fortin points out, is merely a physiological stage in fetal development which has no more significance than any other. Both viability and brain birth as yardsticks decide the fate of the embryo by external factors, and not on its own merits.

1.1.5Selection of any degree of development as measure of worth is arbitrary: Grisez

In fact, the selection of any degree of development as a tool for measuring worth and personhood is arbitrary. An embryo might argue, were she able to, that vitality should rather be the yardstick of dignity.

Grisez suggests that the embryo might say something like: "My life is far better than yours, because my life is a process of development and ever-increasing vitality, while yours is a process of deterioration and waning vitality as you decline toward death." It is not suggested that the embryo's argument would be any more sound than the argument from viability, but it illustrates the point that when we emphasize degree of development we select as decisive this characteristic we prefer among all the differences of human beings. Yet the very fact that such rights as equality and dignity are protected suggests that there is no common denominator of the importance of these differences.

It might be contended that conception is also just a degree of development and thus an arbitrary marker. But conception is qualitatively different from the other stages in that for the first time after conception nothing except nutrition, oxygen and a favourable environment are required for development and this does not change until death.

1.1.5Personhood is characterised by incompleteness: van Niekerk. It may be contended that the conceptus is an incompletely developed person, but incompleteness characterises personhood. "A human person is the dialectical tension between what he or she has become and what he or she could become, between facticity and possibility, between past and future."

1.1.6Willingness to kill what may be a person is willingness to kill a person: Grisez.

On a different tack, Grisez has pointed out that to be willing to kill what for all we know could be a person is to be willing to kill it if it is a person. Thus, a judicial body which holds that a fetus is not a person and thus takes responsibility for its abortion cannot evade moral responsibility for killing a person. This, it is suggested, is a cogent reason for this court to find that the fetus is a person for the purposes of the constitution, and hence, is protected by it.

1.1.7Prejudice against the unborn - "prenatalism": Grisez.

Grisez also makes a convincing argument to the effect that those who approve abortion show characteristic signs of a deep seated prejudice.   This particular brand of prejudice he calls 'prenatalism': we are already born while they are unborn. He notes that the fetus is distinguishable by an obvious characteristic which it is impossible for it to alter. And he notices inconsistencies typical of systems based on prejudice, such as adjacent medical articles describing on the one hand the latest abortion technique and on the other, the latest advance in in utero surgery.

1.1.7Characteristics of discriminatory distinctions: Andrews v Law Society of B.C. (1989).  

La Forest J in the Andrews case in Canada identified characteristics of discriminatory distinctions in likening distinction on the basis of citizenship with discrimination on the more usual grounds. He said that "non-citizens are an example without parallel of a group of persons who are relatively powerless politically, and whose interests are likely to be compromised by legislative decisions." I submit that there is a parallel group which has been traditionally unfairly discriminated against, and that is the class of prenatal human beings.  

1.1.7Age discrimination: s8(2) of the Constitution.

I would like to draw the court's attention to the fact that the right to freedom from discrimination on the basis of age is specifically protected in the Constitution.

Certain dicta from the recent death penalty judgment have a bearing on this issue of prenatalism.

Dicta from the death penalty judgment: Chaskalson P, Furman v Georgia per Brennan J per O'Regan J

Justice Chaskalson spoke of protecting the rights of those who cannot protect their rights adequately through the democratic process, of protecting the worst and weakest among us in order to be secure that our own rights will be protected.

Justice O'Regan cited a dictum condemning punishments that "treat members of the human race as non-humans, as objects to be toyed with and discarded." She also said that part of the job of Bill of Rights is to protect those who are "marginalised, the dispossessed and the outcasts of our society, because they are the test of our commitment to a common humanity and cannot be excluded from it."

"Weakest", "Marginalised", outcasts of society, and "Objects to be toyed with and discarded": these descriptions clearly fit prenatal human beings. Bearing in mind the significance of the right to freedom from discrimination in South Africa's new constitution, it is submitted that discrimination against the class of prenatal human beings must not become law - fetuses must be regarded as persons and accorded rights under the Constitution.  

1.1.7Quote on Nazi rationalisation: Pulvertaft cited by Adams.

"[A] lawyer who [took] part in prosecuting Nazis for war crimes explained how the German nation could have acted so savagely: 'There is only one step to take. You may not think it possible to take it; but I assure you that men I thought decent men did take it. You have only to decide that one group of human beings have lost human rights.'"

1.1.8.1SA law. Abortion proscribed in early indigenous law: Maclean, A Compendium of Kafir Laws and Customs (1858). Judicial consideration (obiter) of extending the nasciturus doctrine: G v Superintendent, Groote Schuur Hospital per Seligson AJ.

Due to time constraints, I will not be able to canvass the all international and domestic legal authority for the proposition that fetuses are to be accorded rights but as Justice Chaskalson has pointed out, in construing our Constitution we must have due regard to our history and legal system. Therefore, I would like touch on two points. Firstly, Maclean in 1858 recorded that abortion was a crime of considerable magnitude in the Eye of indigenous law. Secondly, in the 1993 CPD decision of G versus Superintendent, Groote Schuur Hospital there was an obiter intimation by that there was scope for the extension of the nasciturus fiction so as to provide protection for an unborn fetus against an abortion. Seligson AJ suggested that legal subjectivity, albeit restricted, could be conferred on the unborn child, especially 'in circumstances where its very existence is threatened.'

1.1.9Term "person" should be given broadest possible meaning:   Destro.

Wrapping up this first general submission: In the final analysis, it should be remembered that the purpose for which we have to define the term person is to expand or contract the protection of fundamental rights applicable to a class which stands to lose everything by a limited definition. Therefore, it is submitted that the term should be given its broadest possible meaning. I would also like to mention that Applicant's contention that a legal paradox would arise and that abortion would always be murder, even to save the life of the mother, is patently fallacious. The common law has always recognised the defence of necessity.

A fetus is and must be judicially recognised as a person with rights in terms of the Constitution. This has a bearing on the next general submission.  

1.2Applicant's rights to equality, dignity and privacy, assuming they are infringed by the impugned legislation, are nevertheless trumped by the rights of the fetus and other interested parties.

It is my second general submission that the rights of the fetus and other interested parties outweigh those of the mother.

1.2.1Quote on women's emancipation set against rights of others:   Callahan.

1.2.2Absolute right not to get pregnant: Graham McIntosh. Callahan has written: "It is one thing to emancipate women from discrimination and male tyranny: it is quite another to emancipate them from all human claims and obligations towards the rights of others."

Each woman has an absolute right not to get pregnant. When a pregnancy has begun, however, the rights and interests of four discrete parties become involved in the pregnancy. These parties are: the pregnant woman, the fetus if we accept it is a person with rights, the father, the doctors and nurses involved, and society at large.   Some would add God to this list. A constitutional enquiry into the issue of abortion must therefore balance these diverse rights.   Therefore, in this case the Constitution simply has to be applied horizontally.  of disputes between private individuals involving the Constitution: Gardener v Whitaker per Froneman J.

In the 1994 Gardener decision, Froneman J laid down some useful guidelines for the adjudication of disputes between private individuals involving the constitution. Firstly, a plaintiff who seeks to rely on the precedence of one fundamental right over another should bear the onus for establishing the basis of precedence. The plaintiff having done so, it may then still be possible for a defendant to defeat the claim by relying on a defence justified by a law of general application which complies with the limitations clause.

For present purposes this breaks down like this: Applicant must prove that her equality, dignity and privacy are infringed. Furthermore, she then bears the further onus of proving that the limitation of her rights which the current abortion legislation imposes on her outweighs the legislation's validity in so far as it secures the competing rights of the fetus and the other involved parties. Finally, Respondent can still rely on a defence not based on a fundamental right, complying with s33.

1.2.4Right to Life: s9 Right to Dignity: s10

Although I have mentioned several parties whose rights are affected by the abortion decision, I propose to deal here only with the conflict between the rights of the fetus and those of the mother. I consider Society's interests in my tertiary argument. It is submitted that the fetus's rights to life and dignity would be forfeit if the Applicant's petition were to succeed. This cannot be permitted. The fetus's rights to life and dignity trump the mother's rights.  

In weighing the rights of the mother against the fetus there is no doubt that the full picture of the mother as a whole woman with a real life, real hopes and real pain must be kept in mind. But as the President of the Constitutional Court said in the death penalty judgment:

1.2.5Respect for Life and Dignity are values of highest order - a clear and convincing case must be made out to justify destroying them: Chaskalson P.

"Respect for life and dignity ... are values of the highest order under our Constitution. A clear and convincing case must be made out to justify destroying them."

1.2.6.1Other fundamental rights rank below the right to life: Kriegler J.  

Justice Kriegler said that the rights to dignity and equality and the other fundamental rights rank below the right to life in the hierarchy of values and fundamental rights guaranteed under the Bill of Rights.   He said that they are subsumed by that most basic of rights.   Paraphrasing Justice Kriegler's next comment: "Inasmuch as [abortion] strikes at the heart of the right to life, the debate need go no further."

1.2.6.2Life and dignity two sides of same coin: Mokgoro J.

Yet, as Justice Mokgoro has pointed out: life and dignity are like two sides of the same coin. A violation of the right to life is a violation of the right to dignity. However, abortion affronts the dignity of the fetus not only inasmuch as it violates its right to life, but also because of the manner in which abortions are carried out.

1.2.6.2Dignity of fetus violated by manner in which abortions are performed: Swanepoel, Everett Koop (SG of USA)

For instance, authorised clinical methods include the Saline Abortion.   Amniotic fluid is replaced with a solution of concentrated salt. The fetus is poisoned by the salt, and the outer layer of its skin is burned off by its corrosive effect. It takes over an hour to kill the fetus by this method.

It is also submitted that the possibility of research on whole aborted fetuses offends the dignity of the fetus.

To conclude, then, a mother's rights to dignity, equality and privacy, even if they are infringed, are outweighed by the fetuses rights, protected by the legislation, to life and dignity.

2.Secondary Argument

2.1The impugned legislation does not infringe Applicant's right to equality.

Right to Equality: s8 of the Constitution of the Republic of South Africa Act 200 of 1993.

Impugned legislation does not discriminate on grounds of sex: DeCrow K Sexist Justice (1975) 312, cited in Kingdom E 'Birthrights: Equal or Special?', in Lee and Morgan (Supra) 20-1.

Sections 2 and 3 do not discriminate on the basis of sex. This is because a law is unfairly discriminatory only if it refers to a category of persons which can be filled by men or by women and if it seeks to allocate benefits to men only or women only. Singling out pregnancy for special treatment does not discriminate on the basis of sex even though the law refers only to women because men cannot become pregnant. But if in referring to pregnancy the law goes beyond to spheres other than the reproductive differences between men and women (eg employment or education), the law must treat pregnant women the same as men are treated in respect to the area of regulated employment or education. Expulsion of pregnant schoolgirls is prima facie discrimination because their education is being regulated and not their pregnancy. But the abortion legislation does not go beyond to other spheres in this way.

Impugned legislation rationally discriminates between pregnant and nonpregnant people. Test used: Mfolo and Others v Minister of Education, Bophuthatswana 1994 (1) BCLR 136 (B) per Comrie J at 139G/H-141I.

It is submitted that the impugned legislation rationally discriminates b etween pregnant and nonpregnant persons. In Mfolo's case, the court applied the test of permissible classification used in the US, Germany, India and South West Africa. This test entails that two conditions have to be fulfilled. These are firstly, that the classification must be founded on an intelligible differentia as the basis of the distinction and secondly, that such a differentia must have a rational relation to the object sought to be achieved by the legislation. It is submitted that differential treatment of pregnant women in the arena of abortion passes this test with flying colours.   Firstly, pregnancy as a basis of discrimination is intelligible - common sense tells us that there are implications for pregnant people not applicable to nonpregnant people. Secondly, if the objective of the impugned legislation is to outlaw abortion, what more rational nexus between an objective and a basis of distinction can there be than that only people carrying fetuses to abort be regulated by the legislation. Thus it is submitted that discrimination between pregnant and nonpregnant persons for the purposes of abortion legislation is not unfairly discriminatory. Applicant's right to equality is not infringed.

2.2The impugned legislation does not infringe Applicant's right to dignity.

Right to Dignity: s10 of the Constitution of the Republic of South Africa Act 200 of 1993. Abortion is a denial of women's nature: Smith Abortion as a Feminist Concern 81, 84, cited in Cunningham P C and Forsythe C D 'Is Abortion the "First Right" for Women?: Some consequences of Legal Abortion', in Butler and Walbert (Supra) 111.

It is submitted that the legislation does not infringe Applicant's right to dignity. In fact, the question should be asked whether the State, if it condoned easy abortion on demand, would not thereby be infringing the dignity of pregnant women. As moral philosopher Janet Smith has written: "[B]ehind women's demands for unlimited access to abortion lies a profound displeasure with the way in which a woman's body works and hence a rejection of the value of being a woman ... Abortion is a denigration of women, a denial of one of the defining features of being a woman-her ability to bear children. Now some may deny that this is a defining characteristic of women. But is there any more certain criterion? A woman is a woman because she can bear children... To put is bluntly, an abortion amounts to a mutilation of the woman's body and to a denial of her nature."  

19th Century feminists opposed abortion: Cunningham and Forsythe (Supra) 113.

It is also instructive that 19th Century feminists were uniformly opposed to abortion. "They did not view abortion as a solution to the oppression and disenfranchisement of women. They understood that abortion occurred because of that inequality. They understood that abortion is something done to women, by men, for men."

Abortion has not benefited women: Cunningham and Forsythe (Supra) 117, 157.

Cunningham and Forsythe submit that "although it may be politically correct to espouse abortion as the foundation for women's freedom and progress, it has not truly benefited women." (117) "Abortion violently contradicts the core values that are the very essence of a woman's being: nurturance, care, compassion, cooperation, inclusivity, community and connectedness (157) ... Furthermore, it does not promote the premises of autonomy and choice upon which it is based. (117) Abortion on demand has isolated women, subjected them to coercion, maimed their bodies and wounded their psyches." (157)

2.3The impugned legislation does not infringe Applicant's right to privacy.

Right to Privacy: s13 of the Constitution of the Republic of South Africa Act 200 of 1993.

Definition of privacy: Burchell J Principles of Delict (1993) 207.

It is submitted that the impugned legislation does not infringe Applicant's right to privacy. According to Burchell, "privacy is having one's person or conduct withdrawn from the public gaze - it involves a state of seclusion."

Abortion not a purely private matter: Destro (Supra) 1261-2.

It is difficult to characterise abortion as a purely private matter unless one totally ignores not only the nature of abortion itself, but also the many outside interests which are affected by such a decision.   I have already mentioned the outside interests affected. As to the nature of abortion, it must be borne in mind that a legalised abortion on request would be a medical procedure. Although the personal decision to undergo the procedure, as well as the medical record of its performance, may be confidential, the actual procedure performed by a State-certified medical practitioner in a regulated health facility, can hardly be considered a private occurrence. It is almost ludicrous to compare the sterile anonymity of the operating theatre to the privacy of, say, the marital bedroom.

3.Tertiary Argument

Even if Applicant's rights are infringed, the impugned legislation remains valid because:

3.1The limitation it imposes upon the rights in question is reasonable and justifiable in an open and democratic society based on freedom and equality.

The thrust of my tertiary argument is that the State's interests in proscribing abortion on demand justify overriding the mother's rights.   This applies even if the fetus is not a person protected by the constitution.

Guidelines for applying limitations clause: S v Makwayane and Another per Chaskalson P.

Justice Chaskalson in the death penalty judgment laid down some guidelines for determining whether a limitation of rights is reasonable and necessary. A weighing up of competing values is involved, and ultimately the assessment is based on proportionality.

In the balancing process, the relevant considerations include the nature and importance of the rights infringed, the nature and importance of the purpose for which they are infringed, and the extent and efficacy of the limitation.

In addition, where the limitation has to be necessary, there must be no way of achieving the desired ends through means less damaging to the right in question.

I propose to look now at the nature and importance of the purposes for which Applicant's rights are infringed by the legislation.

Primary State objectives. Protecting fetus & discouraging discriminatory value judgments: Callahan D 'Abortion: Some Ethical Issues', in Butler and Walbert (Supra) 701-2.

The great strength of the movement against abortion is that it seeks to protect one defenseless category of human life; furthermore, it strives to resist the introduction into society of forms of value judgments that would discriminate among the worth of individual lives.

----------------------------------------------------------------------

In almost any other civil rights context, the cogency of this line of reasoning would be quickly respected. Indeed, it has been at the heart of efforts to correct racial injustices, to improve health care, to eradicate poverty, and to provide better care for the aged. The history of mankind has shown too many instances of systematic efforts to exclude certain races or classes of persons from the human community to allow us to view with equanimity the declaration that fetuses are "not human."

Health concerns. Low incidence of mental health problems if pregnancy not terminated: Everett Koop.

In 1989 the U.S. Surgeon General submitted a letter to the President on the Health Effects of Abortion. 250 studies on the psychological aspects of abortion were reviewed but found to be methodologically flawed and thus inconclusive. However, the Surgeon General did note that when pregnancy, whether wanted or unwanted, comes to full term and delivery, there is a well documented, low incidence of adverse mental health effects.  

----------------------------------------------------------------------

Psychological sequelae of abortion: Nash, South African Medical Journal.

The issue of health is also important. Firstly, abortion has psycological sequelae. Nash has written in the South African Medical journal that: "While the practical worldly self of the woman's personality may well be relieved that this complication in her life has been removed, there are repressed feelings of loss, remorse, anger and guilt that may emerge later if not dealt with. An abortion is never a non-event in a girl or woman's life. Experience shows that reactions often emerge in the first year after abortion and, in particular, include 'mourning' the unborn child on its birthday.   Later depression, a further compensatory pregnancy or a schizoid withdrawal from interpersonal relationships are other possible outcomes if the feelings remain unacknowledged and personality splits persist. Suicide is also a significant hazard."  

Legalising abortion results in an increase in backstreet abortions: Middleton. Ways other than legalising abortion on request of reducing the number of backstreet abortions: Clarke.

I turn now to the issue oChaskalson's factors to be weighed in the balance is the efficacy of the limitation. Numbers of backstreet abortions are often cited by the Pro-choice lobby to imply that the Act is not effective in preserving fetal lives, and that abortion on request would reduce the number of backstreet abortions performed.   This would hold obvious benefits in terms of health. There are two counters to this argument. The first is that figures for backstreet abortions are inherently unreliable because of the nature of the phenomenon and because of the fact that the figures are often used for rhetorical purposes. The second counter is that legalisation of abortion does not necessarily reduce the number of backstreet abortions. In fact, in its report to Parliament before the Abortion Act became law in England, the Royal College of Obstetricians and Gynaecologists testified that in other countries the legalisation of unrestricted abortion often resulted, apparently for social reasons, not in a reduction, but sometimes in a considerable increase in the number of clandestine abortions.  

Even if this is not the case, there are other ways reducing the number of backstreet abortions e.g. via State nursery provision, free housing, financial support for children, support within the home, sex education, counselling, contraception. And of course, a solution which immediately springs to mind is a determined crackdown by the police on the backstreet practitioners.

I submit that a State should implement all of these before abdicating to the Heckler's - or Criminal's - Veto. The fact that proscription of drug abuse leads to organized crime and deaths by overdose, or the fact that unregulated prostitution promotes the spread of venereal diseases and AIDS - these are not, I submit, considered persuasive arguments for legalisation of these activities.  

Many illegal abortions possibly result from fragmentation of families in wake of Homelands policies. Discussion of such fragmentation: Cope.

It is also submitted that many illegal abortions in South Africa may be due to the fragmentation of families brought about by the Homeland policies and forced relocations in terms of the Group Areas Act.   Thus, the number of unwanted pregnancies may dwindle naturally as the effects of these laws recede. Viewed from this perpective, a liberalisation of the abortion laws would be premature at this stage.

Even legal abortions are not safe:

Even legal abortions may be "unsafe". The 1973 Wynn report was a detailed analysis of the findings reported in 75 medical publications dealing with long term complications attendant on therapeutic abortions performed in hospitals under normal medical conditions.   According to this report:

2 to 5 % of women become sterile; 30 to 40 % have miscarriages in subsequent preganancies; The risk of other complications in pregnancy doubles; There is a 40 % increase in premature births with consequent risk of child being born deformed.

Cunningham and Forsythe have listed numerous reported U.S. cases and anecdotal information exposing maternal death and injury arising from botched abortions. The deaths apart, they reveal that women suffer mild to severe physical injury and trauma from legal abortions, including punctured uterus, incomplete abortions, pelvic inflammatory disease, or stroke.

Unsavoury clinic practices: Cunningham and Forsythe (Supra) at 133nn189-192.

He also mentions an undercover newspaper investigation into the practices of Chicago abortion clinics which exposed assembly line techniques, overcrowding, incompetence, corruption and fraud against patients.

It is submitted that a State which legalises abortion on request may send out the message to its citizens that the procedure is safe and routine. This is simply not the case.

Miscellaneous. Abortion not 'indispensable' for population control.   Abortion as contraception leads to aberrations: Graham McIntosh.   State interest in encouraging relationships of mutual responsibility between women and men. State interest in discouraging promiscuity.

It is sometimes argued by the pro-Choice lobby that no fertility control program has ever succeeded without the option of abortion.   The implication is that abortion on request is indispensable in the fight against overpopulation. This argument ignores two important issues. Firstly, I submit that a fertility control program which fails without abortion might succeed without abortion, if only measures such as legal duties upon doctors and clinics to offer contraception and counselling in contraception to every woman consulting with them are adopted, or if sufficient funds are allocated by government to permit travelling contraception clinics to visit all areas, etc. In other words, abortion on request is not a necessary tool in combatting overpopulation. Secondly, abortion employed as a means of contraception can lead to aberrations such as are presently seen in India where many more female than male fetuses are aborted because fetuses can now be sexed in the womb. The prevention of such aberrations is, it is submitted, a State objective of sufficient importance to justify overriding Constitutionally protected rights.  

It is also submitted that the State has interests in encouraging relationships of mutual responsibility between women and men, and in discouraging promiscuity.

Reasonable or unreasonable impact on people affected by the legislation must be examined: Hunter v Southam per Dickson J. Another of Justice Chaskalson's factors to be weighed in the balance is the extent of the limitation. The Canadian case of Hunter versus Southam is helpful here. It was held that an assessment of the constitutionality of a statute must focus not simply on its rationality in furthering valid governmental objectives but also on its reasonable or unreasonable impact on the people affected by the statute. It is submitted that the current law does not have an unreasonable impact on pregnant women seeking abortions. A law which prohibited abortion even for risks to the woman's health, foetal defects or in cases of rape or incest would, I submit, be unreasonable. But the legislation with which we are concerned permits abortion for these indications.

It may be contended that the burden of having to obtain the consent of 3 physicians renders the law unreasonable in so far as abortion even for the permitted indications is prohibitively difficult to procure. But this does not apply to Applicant - any limitation to her right to dignity is not imposed by these provisions. Even were this the case, I submit that the law is not unreasonably burdensome. To permit abortion with the consent of one doctor would soon result in an abortion on request scenario. The English experience bears this out - English law theoretically demands at least a socio-economic reason or a life crisis before abortion is legal; but the decision is left to the woman and her physician. This has resulted in de facto abortion on demand.

3.2The impugned legislation imposes a necessary limitation of Applicant's right to dignity.

3.2.1Limitation of Applicant's right to dignity must be necessary: s33(1)(aa).

The issue of necessity should also be addressed. If a law limits the right to dignity, then, in terms of the Constitution the limitation must be necessary.

This has a double implication: firstly, the State's objective in overriding the right to dignity must be a necessary one. The necessity of preventing abortion on request has, I submit, already been demonstrated.  

As Justice Chaskalson has pointed out, one of the implications of the fact that the limitation must be necessary is that no law less damaging to the right to dignity and yet which still achieves the desired ends, must be possible.

Assuming that the impugned legislation does infringe Applicant's dignity by denying her an abortion, the question is whether a less restrictive law which would still secure the objective is possible.   There is no such law. If the objective is to prevent the killing of fetuses except in certain limited cases then abortion on request clearly cannot be permitted. The impugned legislation's impairment of Applicant's right to dignity is necessary.

3.3The impugned legislation does not impose a limitation which negates the essential content of Applicant's rights to equality, dignity and privacy.

3.3.1,2,3Limitation of a right shall not negate the essential content of the right: s33(1)(b). Subjective and objective negation of the essential content of rights: Chaskalson P. Incremental invasion of rights: Mahomed J.

Finally, it is submitted that the impugned legislation does not impose a limitation which negates the essential contents of Applicant's rights. The Constitutional provision that the essential content of rights must not be negated is contentious and both subjective and objective approaches to its application have been considered.   However, I submit that Justice Mahomed's observation in the Death Penalty judgment about the incremental invasion of rights is instructive. Thus, while the right to life cannot be incrementally invaded - it is either denied or not denied - other rights, such as, I submit, the rights to equality, dignity and privacy, can be incrementally invaded. What this means is that even if the impugned legislation does infringe Applicant's rights she still retains her equality, dignity and privacy in other spheres. I submit that this in turn means that the essential content of Applicant's rights is not negated, even if the concept is approached from the so-called subjective perspective.

4.Closing Submission

In closing, I submit that the human rights guaranteed in our Constitution are an attempt to correct the human wrongs of the past.   In recognising this it is important to realise that not all laws passed by the Apartheid regime were bad - conservatism does not equal Apartheid and, in fact, all societies retain a political right.   According to Professor Strauss, not a single member of the opposition parties regarded the Bill which became the Abortion and Sterilisation Act as an 'apartheid measure.' Just as conservatism does not equate to Apartheid, so rights protection does not necessarily equate to liberalism - sometimes, the conservative approach might be needed to protect human rights. However, it is even doubtful whether the impugned legislation is conservative at all.

As Callahan has written: "Historically, the proposition that all human beings are equal, however 'inchoate' they may be is not conservative but radical [-] it is constantly threatened in theory and subverted in practise."

I submit that the present law in respect of abortion, as embodied in s2 and s3, is a necessary challenge to that threat, and accordingly, I pray that the application be dismissed with costs.  

  OTHER POSSIBLE IDEAS MILITATING AGAINST ABORTION ON DEMAND, NOT USED

(a)Father's rights

Parents should have joint and equal rights in their children: Olmsdahl (Supra) 217.

"Since the right of procreation cannot be exercised alone it is logical that the parents should have joint and equal rights in their children. The father's interest does not spring into existence full grown on the day of birth. During gestation he shares with the mother the anxiety, anticipation and feeling for the unborn child. He also has an emotional investment in the child from the earliest days of pregnancy. Today he takes a more active role in her labour and delivery and is expected to share in the duties of child care after birth."  

"As both are so involved, it would be shocking to suggest that the husband could demand that the wife have an abortion even though she desires the child. Why then should the law allow the wife the sole decision in the brief nine month gestation period, when after birth neither parent can act singly?"

(b)Society's rights to freedom of conscience and religion:

(i)Constitutionalism and human rights protection both rest upon religious convictions: Kommers D P 'Abortion and Constitution: United States and West Germany' (1977) 25 American Journal of Comparative Law 255 at 279.

The very idea of "constitutionalism" is rooted in certain basic beliefs, the belief in the dignity of man and the belief in man's inclination to abuse power. These beliefs rest upon religious convictions, and the presuppositions of Roe versus Wade are no less religious than those of the German abortion cases which accord fetuses the right to life. After all, the value of privacy is squarely rooted in the historical belief in man's spirituality, out of which grew a theory of personal autonomy.

(ii)Christian doctrines of imago dei and the incarnation of Christ suggest personhood at conception: Cameron N 'The Status of Prenatal Human Life: the Present Debate in Europe', in van Niekerk A (Ed) The Status of Prenatal Life (1991) 84. If it is accepted that spirituality is intimately related to the concept of rights protection, then the two Christian doctrines of the creation of man in the imago dei and the incarnation of Jesus Christ must be accorded their due persuasive weight. The image of God doctrine teaches that no matter how depraved or old or young a human may be, he or she bears the inordinate dignity of the creator's image. Such a concept lies at the heart of our notions of human dignity and human rights and it is indivisible. The second doctrine teaches that Christ was conceived by the Holy Ghost.   The human life of the Son of God began with incarnation in embryo.   Both of these propositions if accepted require that the fetus be accorded the status of personhood.

(c)The Constitution accords rights even to "juristic persons."

(d)Response to the argument that the African notion of "Ubuntu" supports a woman's right to abortion on demand.  

It is submitted that ubuntu is one of those "woolly" concepts which can be set to music. I have seen various definitions of it, including: the pursuit of unity, dependency on human relationships, manna for the soul, humaneness, personhood and morality. It is my contention that the concept is vulnerable to the vagaries of interpretation. Although people have suggested that Ubuntu justifies abortion on request, the definitions I have given are equally as accomodating of a denial of abortion on request.