Unfinished business: the feminist legal framework for abortion and ongoing struggle for reproductive justice in South Africa

Abstract

In South Africa today, abortion is a right codified in law. The Choice on Termination of Pregnancy Act 1996 (CTOP Act) explicitly promotes reproductive rights, recognizes that the state has the responsibility to enable women to access safe abortion, and is highly permissive by international standards. The CTOP Act was passed by the African National Congress government just two years after South Africa transitioned from apartheid, the racist national policy of “separate development” of the races (1948-1994), to representative democracy. The law has been rightly hailed by women’s health advocates around the world as legislation that fosters women’s reproductive rights, in stark contrast to the previous, extremely restrictive abortion legislation that forced the great majority of South African women and adolescents to utilize clandestine, often dangerous abortion methods. Implementation of the CTOP Act rapidly resulted in a massive reduction in abortion-related morbidity and mortality. However, many women, especially young women and teenagers of color, continued procuring clandestine abortions after 1996 and thousands are admitted to hospital annually with incomplete abortion. This chapter explores the incongruity of the persistence and ubiquity of unsafe abortion in South Africa, a country renowned for having a superb legal framework concerning abortion, and explains the existence of the yawning gap between the letter of the law and accessible safe abortion in post-apartheid South Africa. More generally, the unfolding history of the CTOP Act demonstrates that there are limits to what enactment of progressive legislation can achieve for struggles for reproductive rights, justice and freedom.