Marion Stevens, Founding director of the Sexual and Reproductive Justice Coalition in South Africa and PhD candidate| SARChI Chair in Gender Politics, Department of Political Science, Stellenbosch University.
The persistence of political and cultural wars in the United States has resonance in South Africa. With the leak of the Supreme Court opinion in early May 2022 there was a flurry of activity focusing on the impact such a decision might have on a global scale. Roe v. Wade was overturned on 24 June 2022, and bans on abortion became imminent in the US. The US Supreme Court decision has caused alarm about how South African rights and access to reproductive health care might be affected.
The concern about the potential impact of the overturning of Roe v. Wade has underscored that South Africa does have a strong legal framework for reproductive health, however the large footprint and impact of the US and international non-governmental organisation (INGO) reproductive health industrial complex has been laid bare.
South Africa has sturdy legal provisions that allow for abortion at different stages of pregnancy. The law was liberalized in 1996, replacing the apartheid-era Abortion and Sterilization Act of 1972. The repealed Abortion and Sterilization Act operated unfairly to discriminate against women generally by denying them control over their own fertility, but also discriminated indirectly against black, poor, and rural women. Black women were less able to access services and an estimated 425 women died annually from unsafe abortions (Favier, Greenberg and Stevens, 2018).
The challenge in South Africa is that we have had very poor implementation of services. In 2000 the restrictions on US public donor funding governed through the Gag rule were reintroduced for the first time since the 1996 Choice on Termination of Pregnancy Act was passed. South Africa was bearing the brunt of the HIV epidemic at that time with a large investment into the HIV treatment movement. Given funding restrictions, work on sexual and reproductive health and rights and in particular abortion became increasingly marginalized (Stevens, 2021), and this led to the flight of many stakeholders from the abortion movement. For example, board members from the Reproductive Rights Alliance suddenly began resigning, as they were receiving USAID money and working on HIV treatment programmes.
This was the period of campaigning for Anti-Retroviral treatment (ART) within the HIV movement and the Prevention of Mother to Child Transmission (PMTCT) campaign was a central focus. The emphasis on treatment was to prevent transmission to the unborn fetus. A woman could have received a pregnancy and HIV diagnosis on the same day and the only response was to continue the pregnancy and prevent transmission; there was no clinical engagement to offer an abortion if requested. Given the contextual and political challenges the emphasis was on HIV treatment and the right to reproductive health was ignored.
The void left by the decimation of the women’s movement in South Africa has been filled with the proliferation of US international NGOs, which have a huge influence (Stevens, 2021). The rise in INGOs has had the effect of weakening public reproductive health care and organized sexual and reproductive health programing, since the training of providers, supply chains of reproductive health commodities, provision of services and communications in relation to sexual and reproductive health and rights (SRHR) are provided by these international entities.
The influence of US reproductive health programming has been a challenge, particularly the legacy of what is termed “conscientious objection” in the US individualist framework (Stevens 2017). Within South Africa, litigation regarding conscientious objection has concerned apartheid-era refusal of military conscripts at great personal cost. The importation of these ideas has been confusing and has enabled a culture of health workers refusing to undertake reproductive health services (Stevens and Conco, 2021). The Choice on Termination of Pregnancy Act makes provision for addressing health systems barriers in the patient-centered legal framing of ‘obstruction to access’ (Nabaneh, Stevens and Pizzarossa, 2018) and such provisions have been included in the recent abortion clinical guidelines to address refusal to care. INGOs working on reproductive health have operated as outposts funded by private foundations. While globally using the language of reproductive justice, these organizations have not worked collaboratively to support sustainable local reproductive justice movements. The emphasis of their work has also on technology and indicators seemingly reminiscent of apartheid population control, where quantitative measures were used to advance particular development goals. This is in sharp contrast to the suite of sexual and reproductive health policies which support quality of care and increased contraception options as opposed to the decades-old method of injectable contraceptives imposed on the global south (Stevens, 2021). What remains is an eroded and weakened sexual and reproductive health movement.
At the same time the influence of the opposition to reproductive rights work has taken root. Such opposition has involved the countering of comprehensive sexuality education, advocating for abstinence education, and organizing and supplying crisis pregnancy centres (Namubiru and Wepukhulu, 2020). Of note is the continued presence of the US right wing, who have engaged in litigation strategies to dilute and unsettle existing legal provisions (Albertyn, 2019). In 2017, a private members bill was introduced in the South African parliament with the intention of creating undue burdens on women seeking abortions. The provisions in this bill mirrored those of litigation strategies in the US in a ‘copy and paste’ effort reflecting the conservative influence of the religious right. In 2019, another effort was to import the idea of offering the choice to have a fetal burial. On the surface this is a reasonable and compassionate gesture; however, the consequences of such a practice programmatically would result in the costs of burial accruing to the woman, and in essence would serve as a deterrent to access abortion care. Such pop-up neo-colonial litigation strategies take time and effort away from addressing domestic and local challenges in the implementation of reproductive health care. Also significant is the transparent organizing of the right wing in South Africa, with groups regularly going on study trips to learn conservative politics.
South Africa has explored institutionalizing reproductive justice, and a fledgling movement is developing. In 2018 an International Conference was hosted at Rhodes University in South Africa with support from the South African Government. The conference was a unique example of the ability of government, academia and civil society to collaborate in partnership. A year later a Reproductive Justice Election Campaign was held, a global first, holding political parties to account for their positions on areas of reproductive justice.
The reality is that despite the progressive legal framework currently existing in South Africa, challenges of implementation remain. Such concerns raise the question as to why extremely common medical processes and procedures that have been established as safe by medicine are governed by law and why these cannot be implemented as easily as other health care practices. The answer remains in a wide variety of vested interests, industries, complexes and powers controlling women and reproduction.
Albertyn, Cathi (2019) ‘Abortion, Reproductive Rights and the Possibilities of Reproductive Justice in South African Courts’. University of Oxford Human Rights Hub Journal, 1: 87-119. https://ohrh.law.ox.ac.uk/wp-content/uploads/2021/04/U-of-OxHRH-J-Abortion-Reproductive-Rights-and-the-Possibilities-of-Reproductive-Justice-in-South-African-Courts-1.pdf. Accessed 7 October 2022.
Favier, Mary, Jamie M. S. Greenberg, and Marion Stevens (2018) ‘Safe abortion in South Africa: “We have wonderful laws but we don’t have people to implement those laws”’. International Journal of Gynecology & Obstetrics 143: 38-44. https://doi.org/10.1002/ijgo.12676
Nabaneh, Satang, Marion Stevens, and Lucia Berro Pizzarossa (2018) ‘Let’s call “conscientious objection” by its name: Obstruction of access to care and abortion in South Africa’. Oxford Human Rights Hub, 24 October. https://ohrh.law.ox.ac.uk/lets-call-conscientious-objection-by-its-name-obstruction-of-access-to-care-and-abortion-in-south-africa/. Accessed 7 October 2022.
Namubiru, Lydia, and Khatondi Soita Wepukhulu (2020) ‘Exclusive: US Christian right pours more than $50 m into Africa’. Open Democracy, 29 October. https://www.opendemocracy.net/en/5050/africa-us-christian-right-50m/. Accessed 7 October 2022.
Pande, Amrita (ed.) (2022) Birth Controlled: Selective Reproduction and Neoliberal Eugenics in South Africa and India. Manchester: Manchester University Press.
Stevens, Marion (2017) ‘Allow Women to Vote with their Conscience’. Daily Maverick, 27 August. https://www.dailymaverick.co.za/opinionista/2017-08-27-allow-women-to-vote-with-their-conscience/. Accessed 7 October 2022
Stevens, Marion, and Daphney Nozizwe Conco (2021) ‘International Safe Abortion Day: New clinical guidelines for South Africa to empower healthcare workers’. Daily Maverick, 28 September. https://www.dailymaverick.co.za/article/2021-09-28-international-safe-abortion-day-new-clinical-guidelines-for-south-africa-to-empower-healthcare-workers/ Accessed 7 October 2022.
Stevens, Marion (2021) ‘Sexual and Reproductive Health and Rights: Where is the progress since Beijing?’ Agenda, 35(2), 48-60.