Abstract
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion has reduced abortion to a form of failed contraception. Illegal abortions motivated new law, as well as research, Professor Lourens Marthinus du Plessis’ constitutional argument favouring women’s (reproductive) right to abortion. Yet, illegal abortions continue as before democracy when the seemingly Christian, racially-motivated law, was flouted by white and black women alike. The Constitution adopts a neutral position on the right to life, but is decidedly pro-abortion. This does not imply that a constitutional challenge, which has yet to occur, seeking to amend the current status quo and to provide protection to an unborn, may be an exercise in futility. This article is written in honour of, and analyses the role and early “pro-life” views of the now retired Du Plessis as a white Afrikaner male, husband, father and proud grandfather, schooled in a traditional, conservative strand of Christianity, and as an anti-apartheid constitutional lawyer and drafter – to determine whether his liberal political views are compatible with his moral views and whether they may have since changed.
Highlights
Termination of pregnancy, has always been legally “allowed” in South Africa, albeit in gradations from most restrictive in terms of the common-law, to less restrictive during the operation of the first statute to regulate it during apartheid from 1975, namely, the Abortion and Sterilisation Act (ASA)[2], to unrestricted since 1996, when the ASA was replaced by the current statute regulating it, namely, the Choice on Termination of Pregnancy Act (CTOPA).[3]
I contend that Prof Du Plessis’ last article (1996), which contains his most recent interpretations pertaining to abortion, it was written in a purely constitutional context, displayed remarkable political acuity of, consciousness of, and grappling with, the fact that “moralities” have to be tempered with the “realities” that the ravages of apartheid had left behind as a legacy for the majority of South Africa’s impoverished people, when it came to the question of “unwanted” children or “back-street” abortions, and which still continue.[6]
I base my assumption on the fact that Du Plessis had in 1990 clearly articulated support for a pro-life view when he referred to an unborn as a “human being”, and advanced the argument that every unborn be given the right to a start to life that would include forming part of a family, whether wanted or unwanted
Summary
Termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. The Constitution adopts a neutral position on the right to life, but is decidedly pro-abortion. This does not imply that a constitutional challenge, which has yet to occur, seeking to amend the current status quo and to provide protection to an unborn, may be an exercise in futility. This article is written in honour of, and analyses the role and early “pro-life” views of the retired Du Plessis as a white Afrikaner male, husband, father and proud grandfather, schooled in a traditional, conservative strand of Christianity, and as an anti-apartheid constitutional lawyer and drafter – to determine whether his liberal political views are compatible with his moral views and whether they may have since changed
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