THE CONSTITUTIONALITY OF ABORTION ON REQUEST IN SOUTH AFRICA

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 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. 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 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  (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 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) 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 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.

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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.  

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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.