CC case number: CCT120/21 HC case number: 16402/2017 In the matter of:
THE VOICE OF THE UNBORN BABY NPC First Applicant CATHOLIC ARCHDIOCESE OF DURBAN Second Applicant and
MINISTER OF HOME AFFAIRS First Respondent
MINISTER OF HEALTH Second Respondent
WOMEN’S LEGAL CENTRE TRUST First Amicus Applicant SEXUAL AND REPRODUCTIVE JUSTICE COALITION Second Amicus Applicant
HEADS OF ARGUMENT: AMICI CURIAE
TABLE OF CONTENTS
INTRODUCTION AND OVERVIEW ... 3 CONDONATION ... 5 The APPLICATION FOR LEAVE TO INTERVENE AS AMICI CURIAE ... 7 The aspirant amici’s interest in the matter 8 The relevance and importance of the aspirant amici’s submissions 9
The interests of justice 10
APPLICATION TO ADDUCE EVIDENCE ... 11 SUBMISSIONS OF THE ASPIRANT AMICI ... 14 Legal framework informing rights of access to abortion in South Africa 15
The CTOPA 20
The impact of foetal burial rights on access to abortion services ... 21 The social and economic context of abortion services 21 COMPARATIVE PERSPECTIVES ... 29 Barriers to abortions in the United States 29 THE APPROPRIATE REMEDY IN THE CIRCUMSTANCES ... 38 CONCLUSION AND COSTS ... 40
INTRODUCTION AND OVERVIEW
The Women’s Legal Centre Trust (“the WLC” or “the WLC Trust”) and the 1
Sexual and Reproductive Justice Coalition (“SRJC”) (jointly referred to as “the aspirant amici”) apply for admission as amici curiae in this application for conformation of and leave to appeal against the order granted by the Honourable Mngqibisa-Thusi J (“the court a quo”) on 29 March 2021. They seek an order, inter alia –
1.1 admitting them as amici curiae in terms of Rule 10 of the Rules of the Constitutional Court;
1.2 granting them the right to lodge written submissions on the issues addressed below;
1.3 granting them leave to make oral submissions at the hearing of this matter; and
1.4 granting them leave to adduce evidence that is relevant to the determination of the issues before the Court and that does not appear on the record, in terms of Rule 31 of the Rules of the Constitutional Court.1
The application is opposed only to a limited extent: the Catholic Archdiocese of 2
Durban (“the Church”) opposes the application by the aspirant amici for leave
1 Aspirant Amici, Notice of Motion.
to adduce evidence.2 None of the parties have opposed the relief referred to in paragraphs 1.1 to 1.3 above.
On 12 October 2021, this Court issued directions calling on the aspirant amici 3
to file written submissions by 22 October 2021. The directions noted that the decision on whether to admit the aspirant amici as amici curiae is deferred.
These submissions are prepared in compliance with the Court’s directions and 4
deal with the applications for leave to intervene and to adduce evidence as well as the aspirant amici’s submissions in the event that such leave is granted.
It is important to note at the outset that the scope of the proposed intervention 5
is limited to the voluntary termination of pregnancy in terms of the Choice on Termination of Pregnancy Act 92 of 1996 (“CTOPA”) and the impact of the relief that the applicants seek on the exercise of sexual and reproductive rights in terms of the CTOPA. To summarise, the aspirant amici’s contention is that one of the – albeit unintended – consequences of the relief that the applicants seek would be to deny women of their sexual and reproductive rights by further limiting what is already extremely restricted access to abortion services. In other words, while the applicants’ focus is on granting women and men the choice of foetal burial, the aspirant amici contend that one of the consequences of such a choice would be to undermine the right to choose whether to terminate a pregnancy.
2 Second Respondent, Answering Affidavit in the Application for Amici Curiae.
In illustrating this impact, the aspirant amici seek to address four main topics:
6
6.1 First, the identification and application of the legal principles governing sexual and reproductive health rights that ought to inform the Court’s decision;
6.2 Second, the likely consequence of foetal burial for access to safe and legal abortions, particularly for women from lower socio-economic groups;
6.3 Third, the approach of the courts in the United States to barriers to abortion services; and
6.4 Fourth and finally, the appropriate relief to be granted in the event that the Court confirms the existence of a right to foetal burial.
Before making these submissions, we address three procedural matters 7
relevant to the aspirant amici’s application: condonation for the late filing of the aspirant amici’s application, the test for admission as amici curiae and the requirements for admission of new evidence.
CONDONATION
The aspirant amici seek condonation for the delay in filing their application for 8
leave to intervene and to adduce evidence. The application was filed one court day after the lapse of the time period prescribed in Rule 10(5) of this Court’s Rules. The reason for the delay was that the deponent to the founding affidavit was in transit between Gauteng and the North West Province and could not
depose to the affidavit in time to file the application on 10 September 2021 when it was due.3 It was accordingly delivered on the following court day, namely 13 September 2021.
In Van Wyk v Unitas Hospital4 this Court held as follows:
9
“This Court has held that the standard for considering an application for condonation is the interests of justice. Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success.”
In line with these comments, the key consideration is whether the aspirant 10
amici’s submissions are of assistance to this Court. We submit that the proposed submissions are both novel and highly relevant, for the reasons addressed below. Indeed, it is our respectful submission that this Court would not be in a position to give full consideration to all relevant factors in determining the issues before it without consideration of the factors raised by the aspirant amici. In particular, the question of whether and the extent to which women are able to exercise their sexual and reproductive rights implicates several constitutional guarantees which must, we submit, be taken into account in granting just and equitable relief.
We further submit that the delay in the delivery of the application was short.
11
None of the parties has asserted any prejudice arising from this delay, despite
3 Founding Affidavit: Application for Admission as Amici Curiae, paras 79 – 83, pp 30-31.
4 Van Wyk v Unitas Hospital and Another 2008 (2) SA 472 (CC) at para 20 – 22.
ample opportunity to do so. Indeed, the Church was still able to file an answering affidavit dealing with the aspirant amici’s application to adduce evidence and did not allege that it had been prejudiced in any way by the delay.
We accordingly submit that the delay in the delivery of the application ought to 12
be condoned, in the interests of justice and full ventilation of the issues relevant to the determination of the relief sought.
THE APPLICATION FOR LEAVE TO INTERVENE AS AMICI CURIAE
This Court has described the role of an amicus curiae as follows:5 13
“[26] … [T]the role of an amicus envisioned in the Uniform Rules is very closely linked to the protection of our constitutional values and the rights enshrined in the Bill of Rights. Indeed, rule 16A(2) describes an amicus as an 'interested party in a constitutional issue raised in proceedings'. Therefore, although friends of the court played a variety of roles at common law, the new rule was specifically intended to facilitate the role of amici in promoting and protecting the public interest. In these cases, amici play an important role, first, by ensuring that courts consider a wide range of options and are well informed; and, second, by increasing access to the courts by creating space for interested non-parties to provide input on important public interest matters, particularly those relating to constitutional issues. As this court has noted:
'The role of an amicus is to draw the attention of the Court to relevant matters of law and fact to which attention would not otherwise be drawn. In return for the privilege of participating in the proceedings without having to qualify as a party, an amicus has a special duty to the Court. That duty is to provide cogent and helpful submissions that assist the Court.'
[27] The role of a friend of the court can, therefore, be characterised as one that assists the courts in effectively promoting and protecting the rights enshrined in our Constitution.” (Emphasis added, footnotes omitted)
5 Children's Institute v Presiding Officer, Children's Court, Krugersdorp and Others 2013 (2) SA 620 (CC) at paras 26 – 27, Quoting from In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) at para 5.
In this light, there are three primary requirements for the admission of an 14
amicus curiae:
14.1 An amicus curiae must demonstrate an interest in the constitutional issues raised in the matter;
14.2 It must advance relevant, novel submissions that are of assistance to the Court; and
14.3 Ultimately, admission of the amicus curiae must be in the interests of justice.
The aspirant amici’s interest in the matter
There is no dispute that the aspirant amici have a clear interest in this matter.6 15
Both the WLC Trust and the SRJC are prominent organisations in the field of gender equality and sexual and reproductive health rights in particular. None of the parties has disputed the aspirant amici’s interest in this matter and the experience and insight that they are able to offer to the Court.7
In addition, the WLC Trust, together with Women on Sexual Health (“WISH 16
Associates”) intervened in the proceedings before the court a quo. That their submissions before the court a quo directly informed the order that forms the
6 Second Applicant’s Answering Affidavit: Application for Admission as Amici Curiae para 7 at p 2.
7 Founding Affidavit: Application for Admission as Amici Curiae, paras 11 – 17, pp 6 and 7; supporting Affidavit: Application for Admission as Amici Curiae paras 6-18.
subject matter of these proceedings is clear from a reading of the Court’s judgment.8
We, therefore, submit that the aspirant amici have demonstrated a clear 17
interest in these proceedings.
The relevance and importance of the aspirant amici’s submissions
The proceedings before this Court concern the constitutional validity of the 18
provisions of the Births and Deaths Registration Act 51 of 1992 (“BADRA”) to the extent that they do not make provision for the right to foetal burial. The aspirant amici’s submissions focus on the impact that the Court’s order may have on a class of women whose interests have not been presented to the Court but which are directly implicated in the relief that the applicants seek, namely, women who elect to terminate their pregnancies in terms of the CTOPA.
In Koyabe, this Court stated as follows:
19
“Amici curiae have made and continue to make an invaluable contribution to this Court’s jurisprudence. Most, if not all constitutional matters present issues, the resolution of which will invariably have an impact beyond the parties directly litigating before the Court.
Constitutional litigation by its very nature requires the determination of issues squarely in the public interest, and in so far as amici introduce additional, new and relevant perspectives, leading to more nuanced
8 See paragraphs 38 to 41 of the judgment of the court a quo.
judicial decisions, their participation in litigation is to be welcomed and encouraged.”9
We submit that the aspirant amici’s submissions are plainly relevant to the 20
issues for determination. None of the parties has disputed this contention.
Indeed, the Church has expressly conceded that the question of impaired access to abortion services is relevant to the issues before the Court.10
We further note that none of the other parties has purported in their 21
submissions to address the impact of the relief sought on access to abortion services. The aspirant amici therefore seek to offer a perspective that is not already before the Court, which perspective is critical to the full ventilation of the issues for determination and which is directed at protecting the interests of a vulnerable group.
The interests of justice
We submit that the aspirant amici’s submissions provide a critical perspective 22
to the Court that would not otherwise be provided. They allow the promotion and protection of sexual and reproductive health rights, in a matter critical to the exercise of those rights, but that would otherwise be determined without their voice.
9 Koyabe and others v Minister of Home Affairs and others (Lawyers for Human Rights as amicus curiae) 2010 (4) SA 327 (CC) para 80.
10 Second applicant’s answering affidavit, para 20, p 5.
For these reasons, we submit that the interests of justice favour the aspirant 23
amici’s admission as amici curiae in these proceedings.
APPLICATION TO ADDUCE EVIDENCE
The aspirant amici have sought leave to adduce two pieces of evidence:
24
24.1 The National Clinical Guideline for the Implementation of the Choice on Termination of Pregnancy Act, issued by the Department of Health in terms of the CTOPA (“the National Guideline”); and
24.2 The report prepared by Amnesty International entitled Barriers to Safe and Legal Abortion in South Africa (“the Amnesty Report”).
The admission of evidence by this Court is governed by Rules 30 and 31 of the 25
Constitutional Court Rules. The aspirant amici’s application to adduce evidence is based on Rule 31, which requires that the evidence sought to be introduced is relevant to the determination of the issues before the Court and is either – 25.1 common cause or otherwise incontrovertible; or
25.2 of an official, scientific, technical or statistical nature capable of easy verification.
This Court has, on more than one occasion, admitted new evidence, including 26
evidence introduced by amici curiae, where that evidence is of assistance in assessing the impact of the relief sought by the parties:
26.1 In Bannatyne, which concerned the enforcement of maintenance orders, the Court described as “most useful” the empirical evidence tendered by the Commission for Gender Equality on the state of the maintenance system in South Africa and its impact on the rights of women and children. The Court found that the evidence “gave the necessary context by providing information regarding the frailties inherent in the functioning of the maintenance system and more particularly its effect on the promotion and advancement of gender equality in this country.”11
26.2 Similarly, in Laugh It Off, in which this Court was called upon to balance the right to freedom of expression against the protection of intellectual property rights, the amicus curiae was granted leave to adduce evidence dealing with the depiction and description of the products over which intellectual property rights had been asserted and their positioning in the market.12
The evidence sought to be introduced by the aspirant amici deal with two 27
narrow issues which, we submit, are critical to the Court’s consideration of the impact of the relief that the applicants seek:
27.1 The National Guideline, through its description of the types of abortion available to women in South Africa, enables the Court to ascertain the effect of an extension of the right to foetal burial. The evidence therefore
11 Bannatyne v Bannatyne and another 2003 (2) SA 363 (CC) para 3.
12 Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and another 2006 (1) SA 144 (CC) para 33.
gives content to the practical considerations to be taken into account by the Court, including the challenges in respect of the identification, separation and storage of foetal remains. Were the right to be extended, and provision for the identification, separation and storage of foetal remains required for both medical and surgical abortions, this would have a profound impact on the services that may be offered to women.
27.2 The Amnesty Report contains fundamental information on a different aspect of the exercise of sexual and reproductive health rights, namely the factors that contribute to the extremely limited access to abortion services. This is relevant for two reasons:
27.2.1 First, it highlights that any further diminution in access to abortion services would all but defeat the guarantees of such access; and
27.2.2 Second, it highlights the factors that currently operate to restrict access to abortion services and that will be aggravated by the extension of the right to foetal burial. For example, extension of the right to foetal burial would, we submit, worsen the stigma and prejudice associated with abortion, as well as perpetuating the refusal by medical staff to offer or perform abortions on religious grounds, the provision of directive counselling by medical practitioners, and the insufficient number of abortion facilities that can manage the burdens associated with the extension of the foetal burial right.
These pieces of evidence are, we submit, official in nature and capable of easy 28
verification: the National Guidelines have been published by the National Department of Health and the Amnesty Report was prepared on the basis of information provided by the National Department of Health. We submit that they provide useful contextual information to the Court on non-contentious issues and that they fall within the same category as the empirical evidence admitted in the Bannatyne and Laugh it Off cases referred to above.
We submit therefore that they are admissible in terms of Rule 31 of the Rules of 29
the Constitutional Court.
We now turn to address the substance of the aspirant amici’s submissions, in 30
the event that admission is granted.
SUBMISSIONS OF THE ASPIRANT AMICI
The submissions of the aspirant amici deal with four issues:
31
31.1 The applicable legal framework governing access to abortion services in South Africa;
31.2 The impact of foetal burial rights on the right of access to abortion services;
31.3 Comparative perspectives on foetal burial and access to abortion services; and
31.4 The appropriate relief in the event that the Court finds in favour of extending the foetal burial right.
We address each of these issues in turn.
32
Legal framework informing rights of access to abortion in South Africa
The constitutional protection of sexual and reproductive health rights
Access to abortion services in South Africa is underpinned by a number of 33
fundamental rights:
33.1 Section 12(2) of the Constitution provides that everyone has the right to bodily and psychological integrity, including the right in section 12(2)(a) to make decisions concerning reproduction and the right in section 12(2)(b) to security in and control over their bodies.
33.2 Section 27(1)(a) of the Constitution guarantees the right to have access to health care services, including reproductive health care.
33.3 The rights entrenched in envisioned in sections 12(2) and 27(1)(a) are intrinsically linked to the exercise and enjoyment of the rights to equality, dignity and privacy contained in sections 9, 10, and 14 of the Bill of Rights respectively. The freedom and ability to make decisions based on one’s own circumstances is the golden thread running through these constitutional rights.
In Christian Lawyers Association the Court confirmed the interconnection 34
between the rights enumerated above and the right to termination of pregnancy, holding that “The fundamental right to individual self-determination itself lies at the very heart and base of the constitutional right to termination of
pregnancy”. Accordingly, the right to terminate a pregnancy has as its foundation the rights enshrined in sections 10, 14, 12 and 27 of the Constitution and is part and parcel of the rights to bodily and psychological integrity and control over one’s body.13
Section 7(2) of the Constitution imposes a duty on the state to “respect, protect, 35
promote and fulfil” the rights in the Bill of Rights. This duty includes both the negative obligation to protect these rights and the positive obligation to take steps to respect, protect, promote and fulfil the rights.14
35.1 In doing so, the state may initiate appropriate legislation and ensure its effective enforcement.
35.2 The state’s duty extends beyond its own actions: it is required to take steps to protect these rights against damaging acts that may be perpetrated by private parties.15.
35.3 The state accordingly has a duty to adopt an integrated and comprehensive approach to the fulfilment of its duties arising from the Constitution.16
13 Christian Lawyers Association v Minister of Health and others (Reproductive Health Alliance as amicus curiae) 2005 (1) SA 509 (T) at 518A – E.
14 S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC) at para 11; Christian Education SA v Minister of Education 2000 (4) SA 757 (CC) at para 47; Carmichele v Minister of Safety and Security 2001(4) SA 938 (CC) at paras 44 to 45; Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at para 20.
15 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) at para 27.
In addition to these positive obligations, the state is precluded from adopting or 36
endorsing any regressive measures that would have the effect of diminishing the existing enjoyment of a right, unless exceptional circumstances exist.17 International law obligations
Section 39(1)(b) of the Constitution enjoins the Court, when interpreting the Bill 37
of Rights, to consider international law.
The South African government has ratified several international human rights 38
treaties and agreements which place it under a duty to ensure that abortion services and information are available, accessible, and acceptable and of good quality.18 These include the following:
38.1 The International Covenant on Economic, Social and Cultural Rights (“ICESCR”) –
38.1.1 Article 12 of which recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. Article 12(2)(a) deals with maternal and child health and, we submit, includes specific protection for reproductive health rights.
16 Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) para 77.
17 See Government of the Republic of South Africa and others v Grootboom and others 2001 (1) SA 46 (CC) para 45; Equal Education and others v Minister of Basic Education and others 2021 (1) SA 198 (T) para 46.
18 E/C.12/GC/22, United Nations Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 22 (2016) on the Right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), paras 1-21; CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12) paras 12 (a)-(d).
38.1.2 Article 3 of which obligates States to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights.
38.1.3 General Comment 14 on the ICESCR specifically includes sexual and reproductive freedom in the scope of the right to health and goes on to state that “[t]he realization of women’s right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.”
38.2 The Convention on the Elimination of All Forms of Discrimination Against Women –
38.2.1 article 10(h) of which imposes on state parties the obligation to ensure that women have access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning;
38.2.2 article 12(1) of which obliges state parties to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health services, including services related to family planning;
38.2.3 article 14(2)(b) of which obliges state parties to ensure that women have the right to have access to adequate health care
facilities, including information, counselling and services in family planning; and
38.2.4 article 16(1)(e) of which includes, in the measures to eliminate discrimination against women, an obligation on state parties to ensure that women have the right to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise this right.
38.3 The Maputo Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa, article 14 of which deals with health and reproductive rights and obliges state parties to respect and promote these rights, including –
38.3.1 the right to decide whether to have children, the number of children and the spacing of children (article 14(1)(b)); and
38.3.2 the protection of women’s reproductive rights by authorising the right to a medical abortion in specified circumstances (article 14(2)(c)).
We submit that these instruments impose clear obligations on the South African 39
government to create legal, economic and social conditions that enable and encourage women to exercise their sexual and reproductive rights, including their right of access to abortion services, freely and voluntarily. The state is also required to protect women against any retrogressive measures that have the effect of diminishing such access.
The CTOPA
The CTOPA was enacted to give effect to the state’s international and 40
constitutional obligations in relation to sexual and reproductive rights. The promulgation of the CTOPA has been the most important action by the state in giving effect to these constitutional rights and creates a framework within which women are entitled to exercise full control over their bodies and to take decisions regarding their own health and reproduction.
The CTOPA promotes reproductive rights and extends freedom of choice by 41
affording every woman the right, within specified parameters based on health considerations, to choose whether to terminate a pregnancy. The preamble of CTOPA recognises the State’s duty to provide reproductive health to all, and also to provide safe conditions under which the right of choice can be exercised without fear or harm.
The CTOPA seeks to promote, fulfil and give effect to these constitutional rights 42
by:
42.1 Conferring on all women the right to choose whether to terminate their pregnancies within certain specified parameters; and
42.2 bringing access to safe abortions to all women, in order to prevent morbidity and mortality associated with unsafe, illegal ‘back street’
abortions.
It is a marked move away from the previous legal regime governing abortions, 43
which provided for very limited instances in which women could terminate a pregnancy. The CTOPA is one of the most important pieces of legislation aimed at improving women’s lives. It is dubbed as one of the most liberal examples of abortion legislation in the world. The Act reflects both a desire to empower women in the country generally and recognition that illegal abortion has been widespread and caused significant mortality and morbidity.
As we address below, any restriction on access to abortion services amounts to 44
a threat to women’s constitutional rights to bodily integrity and reproductive healthcare.
We turn now to consider the current state of access to abortion services, so as 45
to highlight the existing fragility of the rights enumerated above.
The impact of foetal burial rights on access to abortion services The social and economic context of abortion services
The National Guidelines make provision for two main methods of termination in 46
South Africa:
46.1 Medical terminations which include self-managed terminations and can be performed at home through the ingestion of medication. 19 This method of abortion, which is typically used to terminate a pregnancy in
19 Annexure SS 6: The National Clinical Guideline, p 16.
the first trimester, enhances access to sexual and reproductive rights through the provision of privacy and convenience. It does not, however, lend itself to the identification, separation and storage of foetal remains necessitated by a right to foetal burial, because women who use this method ordinarily bleed out the contents of their pregnancies. It is therefore not clear how the right to foetal burial could be concretised in the context of medical abortions. The same concerns would apply to other advances that would allow for the private and convenient termination of pregnancies at home, including telemedicine.20
46.2 Surgical terminations, which are performed in health care facilities. 21 Were the right to foetal burial extended, the facilities offering abortion services would presumably be required to establish and maintain appropriate facilities for the identification, separation and storage of foetal remains, to enable those who wish to do so to bury the foetus. Not only is it extremely difficult, if not impossible, to identify and separate foetal remains in the early stages of pregnancy, but the need for additional infrastructure to do so would place a heavy burden on facilities offering surgical abortions. As we address below, this additional burden would likely result in a decrease in facilities offering abortion services and a concomitant diminution of associated sexual and reproductive rights.
20 Founding Affidavit: Application for Admission as Amici Curiae, para 41, p 19.
21 Annexure SS 6: The National Clinical Guideline, p 19-20.
Against this background of the practical considerations in the extension of a 47
foetal burial right, it is also necessary to have reference to the relevant social and economic context of abortions in South Africa as recorded in the Amnesty Report, the content of which is undisputed.22
47.1 Stigma and prejudice: the voluntary termination of pregnancy is perceived by certain sectors of society (including some health care professionals) as immoral; the extension of the right to foetal burial, and the associated ‘option to bury’ will, we submit, provide a further conduit for the moral judgment of abortions and the entrenchment of the associated stigma. One of the extreme examples cited by the WLC Trust and the SRJC is that of the Italian practice of collection of foetal remains by third parties who bury them and place a symbol on their graves, together with the personal information of the woman who terminated her pregnancy. This practice often takes place without the woman’s knowledge and feeds the moral judgment against abortion. 23
47.2 Refusal to offer abortion services on religious grounds: while the CTOPA does not include a clause that allows a medical practitioner to refuse to provide an abortion on religious grounds, the practice of doing so is widespread.
47.3 The provision of directive counselling by medical practitioners: medical practitioners allow their personal anti-abortion beliefs to influence the
22 Founding Affidavit: Application for Admission as Amici Curiae, para 28, p 13.
23 Founding Affidavit: Application for Admission as Amici Curiae, para 47, p 20.
manner in which they interact with patients, even where they do not refuse outright to perform abortions. This exacerbates the stigma associated with abortion and forces many women to seek services outside of lawful terminations of pregnancy. We submit that the extension of the right to foetal burial would extend the practice of directive counselling, increasing the pressure on women to take decisions based on others’ beliefs, thereby worsening the barriers to accessing safe and legal abortions.
47.4 Insufficient number of public abortion facilities: approximately 83% of South Africans rely on the public health care system. Approximately 5.5% of these public health care facilities provide abortion services. Most of these are situated in urban areas. The number of facilities to service women across the country, particularly in rural areas, is wholly insufficient.
47.5 The high cost of sexual and reproductive health services: the costs of accessing sexual and reproductive health care services, particularly for women residing in rural areas, are high, making abortion services less accessible.
47.6 The risk of maternal mortality: given the limited number of facilities offering abortion services and the stigma that attaches to approaching these services, many women are forced to seek these services outside the legal abortion services infrastructure thereby increasing the maternal mortality rate.
47.7 Lack of access to information: there remains a lack of access to information in relation to the availability of termination services.
47.8 Designation: the CTOPA empowers the Minister of Health to designate privately funded medical facilities to offer termination of pregnancy services. Most designated facilities are not-for-profit organisations and are often funded by the charity sector. They are required to establish and maintain the facilities prescribed in section 3(1) of the CTOPA in order to be permitted to offer abortion services.24 Were they required to offer foetal burial services, they would have to establish additional infrastructure to enable the identification, separation and storage of foetal remains. These facilities would likely not be able to sustain any further financial and administrative burdens placed on them as a result of the extension of the foetal burial right. As a result, they would not meet the requirements for designation and would not be able to offer any abortion services at all.
24 Section 3(1) of the CTOPA provides as follows:
“Termination of a pregnancy may take place only at a facility which- (a) gives access to medical and nursing staff;
(b) gives access to an operating theatre;
(c) has appropriate surgical equipment;
(d) supplies drugs for intravenous and intramuscular injection;
(e) has emergency resuscitation equipment and access to an emergency referral centre or facility;
(f) gives access to appropriate transport should the need arise for emergency transfer;
(g) has facilities and equipment for clinical observation and access to in-patient facilities;
(h) has appropriate infection control measures;
(i) gives access to safe waste disposal infrastructure;
(j) has telephonic means of communication; and
(k) has been approved by the Member of the Executive Council by notice in the Gazette.”
What the abovementioned factors demonstrate is that access to sexual and 48
reproductive health care services, including abortion services, is currently severely limited. We submit that the introduction of an extended right to foetal burial can only further restrict this access, frustrating the ability to meet the need for sexual and reproductive health services and undermining women’s sexual and reproductive rights.
There are two further issues to consider in determining whether to extend the 49
right to foetal burial.
The first is that the exercise of the right would trigger a duty to disclose private 50
information. Section 30 of BADRA provides that no burial may occur without a burial order. In order to secure such an order, a woman must complete a notice of death/still-birth, which form cannot be processed unless the following personal and private information has been completed:
50.1 The names of those contributing to the products of conception recorded as the mother and father of the foetus;
50.2 The date of death, the requirement of which imposes on the woman concerned the acceptance of the belief that a person that has died, regardless of her personal values and beliefs;
50.3 The cause of death, which again imposes on the woman concerned the acceptance of the belief of the death of a person and that she was responsible for that death, regardless of her own values and beliefs; and
50.4 The method of delivery, which requires detailed medical information regarding of the applicable method of abortion.
Those who opt for foetal burial, therefore, are compelled to disclose private and 51
personal information in relation to their identities, decisions and circumstances.
They are also compelled to exercise this right from the premise of a particular set of values which may or may not be consistent with their own beliefs.
The second issue for consideration is the practice of ascribing personhood to 52
foetuses, which is a matter that both arises from and reinforces the social stigma surrounding abortions. Ascribing personhood to a foetus bestows human rights on it regardless of a woman’s belief as to whether or not the foetus is yet a human, and linguistically and practically creates antagonism between the pregnant person and the foetus, even if she plans not to terminate the pregnancy.
The founding affidavit in the aspirant amici’s application provides the following 53
examples of this:25
53.1 The description of a foetus as a person whose dignity must be protected;
53.2 The granting of what resemble parental rights to those contributing to the products of conception leading to the referral of a foetus as a baby, and those who were involved in contributing to the conception of the foetus as parents with parental responsibility. This is done despite the legal
25 Founding Affidavit: Application for Admission as Amici Curiae, para 51, p 21.
position conferring parenthood only if and when the foetus is subsequently born alive.
53.3 In this case, the first and second applicants seek confirmation of a declarator to the effect that in the event of pregnancy loss (other than stillbirth where there is a compulsory burial), the ‘parent’ or ‘parents’ to be have the right to bury the foetal remains if they elect to do so. This right is derived directly from the understanding of a foetus as a person.
Ascribing personhood to a foetus through rights and language pits the pregnant 54
woman and her foetus as competing rights holders. It facilitates concepts such as abortion amounting to killing. This creates a substantial emotional burden for women, stigmatises their decisions to control their bodies and severely compromises the rights of women seeking abortion and broadly the constitutional rights described above.
As is clear from above, the extension of the right to foetal burial will not simply 55
have the effect of permitting the exercise of a right; while perhaps unintended, the consequences of the extension of the right to foetal burial will likely be to further restrict access to already scarce resources that are essential to the exercise of fundamental rights, including the rights to dignity, privacy, bodily integrity and access to reproductive health care services.
COMPARATIVE PERSPECTIVES
Barriers to abortions in the United States
Foreign law may be used as a tool in assisting this Court in coming to decisions 56
on the issues before it. The Constitution provides that “[w]hen interpreting the Bill of Rights, a court, tribunal or forum . . . may consider foreign law”.26
Foreign law has been used by this Court both in the interpretation of 57
legislation27 and in the development of the common law.28 The usefulness of foreign law in performing these functions was summarised by Froneman J, in H v Fetal Assessment Centre29 as follows:
57.1 Foreign law is a useful aid in approaching constitutional problems in South African jurisprudence. South African courts may, but are under no obligation to, have regard to it.
57.2 In having regard to foreign law, courts must be cognisant both of the historical contexts out of which our Constitution was born and our present social, political and economic context.
26 Section 39(1)(c).
27 See, for example, Justice Alliance of South Africa v President of the Republic of South Africa and Others [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC) at paras 72-3; Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others [2006] ZACC 23; 2007 (4) SA 395 (CC); 2007 (4) BCLR 339 (CC) at para 45-6; and Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) at paras 72-8.
28 K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) at paras 34-5.
29 (CCT 74/14) [2014] ZACC 34; 2015 (2) BCLR 127 (CC); 2015 (2) SA 193 (CC) (11 December 2014).
57.3 The similarities and differences between the constitutional dispensation in other jurisdictions and our Constitution must be evaluated.
Jurisprudence from countries not under a system of constitutional supremacy and jurisdictions with very different constitutions will not be as valuable as the jurisprudence of countries founded on a system of constitutional supremacy and with a constitution similar to ours.
57.4 Any doctrines, precedents and arguments in the foreign jurisprudence must be viewed through the prism of the Bill of Rights and our constitutional values.30
We submit that given that the application before this Court involves issues that 58
are not addressed in detail in the jurisprudence of the South African courts, the Court ought to have regard to the developments around the right to foetal burial in the United States. These developments have gone hand in hand with efforts to restrict women’s reproductive rights, specifically the right to choose to have an abortion. In particular, while some states in the United States have imposed a complete prohibition on abortion, many that have not prohibited abortion have imposed strict requirements in relation to the disposal of foetal remains.
Many restrictions on abortion have over time been subject to successful 59
constitutional challenges.
30 Id at para 31.
The United States Supreme Court (“USSC”) first addressed abortion rights in 60
the early 1970s in Roe v. Wade31 in which it confirmed that statutes that deny women the right to terminate their pre-viable pregnancy are unconstitutional and violate the right to privacy as afforded by the Due Process Clause. As privacy rights are fundamental rights, they are subjected to the strict scrutiny test, which is the test ordinarily applied in cases of constitutional review. While the USSC recognized abortion as protected by the right to privacy in Roe v Wade, it held that the right includes the rights of a woman to have an abortion without ‘undue interference’ from the state.
The result of this is that as early as Roe v Wade, abortion rights were not 61
assessed under the strict scrutiny test. It is now established that the undue burden test is appropriate.
The undue burden test was first extensively set out by the USSC in Planned 62
Parenthood of Southeastern Pa. v. Casey,32 dealing with the Pennsylvania Abortion Control Act of 1982 (‘Pennsylvania Abortion Act’).
The Majority Opinion penned by Justice O’Connor set out the following ‘guiding 63
principles’ for the standard:33
63.1 An undue burden is an unconstitutional burden which arises when ‘a state regulation has the purpose or effect of placing a substantial
31 410 US 113 (1973) (‘Roe v Wade’).
32 505 U. S. 833, 878 (1992) (‘Casey’)
33 Id at 877 – 879.
obstacle in the path of a woman seeking an abortion of a nonviable fetus’;34
63.2 It is ‘the woman’s right to make the ultimate decision’ that is at stake, rather than a right ‘to be insulated from all others in doing so’;35
63.3 Regulations which protect the health or safety of a woman seeking an abortion are permissible so long as they do not have the ‘the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion’ as this amounts to an undue burden on the right;36
63.4 The undue burden standard is compatible with Roe v Wade, and it remains that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability’. Further, in regard to post-viability, a state may regulate and proscribe abortion,
‘except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother’.37
The effect of this opinion is that a distinction is drawn between state powers in 64
the pre-and-post-viability periods. During the pre-viability period, a state is permitted to regulate abortion only insofar as it protects women’s health or the life of the foetus – it may not prohibit abortions. Laws regulating abortions are
34 Id at 877 - 878
35 Id at 877 – 878.
36 Id at 878.
37 Id at 878.
assessed as to whether they place an undue burden on or substantial obstacle in the way of women’s access to abortion (either in purpose or effect).
We note that the applicants have not challenged the age of viability. The 65
emphasis on a woman’s undisturbed and uninterrupted access to abortion in the pre-viability period is therefore critical.
The introduction of an aspect of cost-benefit analysis in the undue burden 66
standard came with the USSC’s reconsideration of Casey in Whole Woman's Health v. Hellerstedt.38
In Hellerstedt, the Court assessed the constitutionality of the Texas House Bill 67
2, enacted in 2013 (‘Texas Bill’) which contained the following relevant provisions:
67.1 Texas Health & Safety Code Ann. Section 171.0031(a) ‘[a] physician performing or inducing an abortion…must, on the date the abortion is performed or induced, have active admitting privileges at a hospital’
(‘Texas Admitting Privileges Requirements’); and
67.2 Tex. Health & Safety Code Ann. §245.010(a) – ‘the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers’ (‘Texas Surgical-Center Requirement’).
38 579 U.S. (2016) (‘Hellerstedt’).
The matter was referred to the USSC by abortion providers who claimed that 68
the provisions were unconstitutional in light of the Equal Protection Clause and Casey. They sought injunctions preventing the enforcement of the Texas Admitting Privileges Requirement as they applied to specific facilities and the Texas Surgical-Center Requirement. The District Court, applying the undue burden standard, found both provisions unconstitutional. The Court of Appeals for the Fifth Circuit argued that because the Texas Bill was assessed in another decision39 the doctrine of res judicata barred a constitutional challenge to both provisions. The Court did remark, however, that an abortion regulation is
‘constitutional if (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and (2) it is reasonably related to…a legitimate state interest’.40
The USSC’s majority opinion, delivered by Justice Breyer, found that the Court 69
of Appeals was incorrect in its articulation of the relevant standard which is, as per Casey, whether there is any undue burden.41
Further, it found that both provisions ‘places substantial obstacle in the path of 70
women seeking a pre-viability abortion, each constitutes an undue burden on abortion access’ and that neither ‘confer[rred] medical benefits sufficient to justify the burdens upon access that each imposes.’42 The Court accepted
39 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F. 3d 406, 419 (2013).
40 Id.
41 Whole Woman's Health v. Hellerstedt, 579 U.S. (2016) at 20.
42 Id at 2.
evidence that established that the Texas Admitting Privileges Requirement led to the closure of approximately half of Texas’ abortion clinics which ‘meant fewer doctors, longer waiting times, and increased crowding’ as well as increased driving distances, that cumulatively ‘and when viewed in light of the virtual absence of any health benefit’ constituted an undue burden.43 The available evidence also illustrated that the Surgical-Center Requirement would lead to closures in specific areas of Texas, resulting in the Court’s finding that it too did not pass constitutional muster.44
Most recently in 2020, the USSC had to make an assessment of the Louisiana 71
Statute, Act 620 (‘Louisiana Statute’) in June Medical Services, LLC v. Russo.
45. The statute required any doctor who performs abortions to hold ‘active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced’.46 ‘Active admitting privileges’ were defined as ‘a member in good standing’ of the hospital’s
‘medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient’. 47 Failure to comply with this requirement would lead to fines of up to $4000 (four thousand dollars), license revocation and civil liability48.
43 Id at 26.
44 Id at 32.
45 591 U.S. (2020) (‘June Medical Services’).
46 La. Rev. Stat. Ann. §40:1061.10(A)(2)(a).
47 La. Rev. Stat. Ann. §40:1061.10(A)(2)(a).La. Admin. Code, tit. 48, pt. I, §4401.
48 La. Rev. Stat. Ann. §40:1061.29.
Five opinions were penned by the USSC in June Medical Services. Given the 72
similarities between Hellerstedt and June Medical Services, the USSC (in plurality and dissent) gave extensive attention to its previous findings. The majority opinion by Justice Breyer, affirming Casey, Hellerstedt and others, emphasized that the applicable standard is as follows:
72.1 ‘a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends’;49
72.2 ‘[u]nnecessary health regulations” impose an unconstitutional “undue burden” if they have “the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion’;50
72.3 ‘courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer’;51
72.4 ‘courts “must review legislative ‘factfinding under a deferential standard’…[b]ut they “must not ‘place dispositive weight’ on those
‘findings,’” for the courts “‘retai[n] an independent constitutional duty to review factual findings where constitutional rights are at stake.’52
49 Casey at 877, June Medical Services at 16.
50 Casey at 878, June Medical Services at 16.
51 June Medical Services at 16.
52 Id at 17.
Affirming the burden-benefit analysis of the undue burden standard, the Court 73
then assessed the District Court’s findings as to the burden placed on women’s access to abortion as a result of the Louisiana Admitting Privileges Requirement53 against its asserted benefits.54 It accepted the finding that there was ‘no significant health-related problem’ that the Louisiana Admitting Privileges Requirement would resolve and that it did not provide ‘significant health benefits’, made ‘no improvement to women’s health compared to prior law’ and served no ‘relevant credentialing function’ where there was no evidence indicating that it ‘add[ed] significantly to the vetting that the State Board of Medical Examiners already provides’.55
Further, the Court found that it ‘does not conform to prevailing medical 74
standards and will not improve the safety of abortion in Louisiana’ given the rarity of complications from surgical abortion or of severe complications which require admission to a hospital or emergency room.56 In addition, the evidence established that where there are complications while the patient is admitted, the existing transfer agreements are sufficient and, when complications occur when the patient has returned home, she will be sent to the nearest hospital – which may not always be within 30 miles of the clinic.57 Lastly, the state failed to
53 Id at 19 – 35.
54 Id at 36 – 38.
55 Id at 36 – 38.
56 Id at 36 – 38.
57 Id at 36 – 38.
establish that where physicians have admitting privileges, patients have ‘better outcomes’ or ‘would have helped even one woman obtain better treatment’. 58
The Court affirmed that the undue burden standard involves an analysis which 75
weighs the law’s ‘asserted benefits’ ‘against the burdens’ imposed on access to abortion.59
We have set out above the reasons for our submission that the impact of the 76
extension of the right to foetal burial will have a devastating impact on access to abortion services in South Africa. Both receivers of the services and health facilities that provide the services will be unduly burdened. The burdens associated with this change, we submit, outweigh the asserted benefits, and ought therefore not to be endorsed by this Court.
THE APPROPRIATE REMEDY IN THE CIRCUMSTANCES
Section 172 of the Constitution empowers the Court when deciding a 77
constitutional matter to make any order that is just and equitable. Appropriate relief must be fair and just in the circumstances of the particular case.60 This is determined by considering the broader context of each case with a view to determining how best the values of the Constitution can be promoted.
58 Id at 36 – 38.
59 Id at 17.
60 In Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 at para 19, the court stated that: Appropriate relief will in essence be relief that is required to protect and enforce the Constitution.
In Hoffmann v South African Airways61, Ngcobo J held that:
78
“In the context of our Constitution, “appropriate relief” must be construed purposively, and in the light of section 172(1)(b), which empowers the Court, in constitutional matters, to make “any order that is just and equitable.”Thus construed, appropriate relief must be fair and just in the circumstances of the particular case. Indeed, it can hardly be said that relief that is unfair or unjust is appropriate. As Ackermann J remarked, in the context of a comparable provision in the interim Constitution, “[i]t can hardly be argued, in my view, that relief which was unjust to others could, where other available relief meeting the complainant’s needs did not suffer from this defect, be classified as appropriate.”
Appropriateness, therefore, in the context of our Constitution, imports the elements of justice and fairness.”62
One of the key factors for consideration in this regard is the ability of the relief 79
to ensure fairness to all those who might be affected by it, and not only to the parties immediately before the Court.
The court a quo granted the relief sought by the applicants, but held that the 80
declaration of invalidity did not ‘apply in the case of a pregnancy loss due to an inducement’ – being as a result of ‘conscious human intervention’. Accordingly, the fetal remains from induced pregnancy loss, continue to be treated as pathological waste.
The aspirant amici do not make any submissions in relation to the loss of a 81
pregnancy due to still-birth. In the context of abortions under the CTOPA, however, we submit that if this Court confirms the order of the court a quo, the fetal burial right ought not to be extended.
61 (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1.
62 Id at 42.
To do so would severely limit women’s access to abortion services. The high- 82
water mark of assessment falls on how women’s access to abortions may be implicated through closing facilities, increasing costs, and delaying the availability of services, as well as the imposition of religious and cultural beliefs through directive counselling. Whether or not these consequences are intended, they are a reality that must be taken into account.
For the reasons outlined above, we submit that an order extending the foetal 83
burial right to women who elect to terminate their pregnancies would unduly burden their rights to dignity, privacy, bodily integrity and access to reproductive health care services.
The women who would be affected by the order that the applicants seek are 84
also particularly vulnerable. We submit that it is therefore incumbent on the Court to ensure that they are afforded sufficient protection.
CONCLUSION AND COSTS
For the reasons set out above, we submit that a proper case has been made 85
for the admission of the WLC Trust and the SRJC as amici curiae and the admission of the new evidence. We further submit that, when due regard is had to their submissions, the appropriate relief in the circumstances and in relation to abortions under the CTOPA would be not to extend the foetal burial right.
As amici curiae, the WLC and the SRJC do not seek costs. We submit that it 86
would also not be appropriate for any adverse costs award to be made against them, as per the Biowatch principle.63
NIKKI STEIN THABANG POOE WLC and SRJC’s counsel Chambers, Sandton 22 October 2021
LIST OF AUTHORITIES
Domestic case law:
Bannatyne v Bannatyne and another 2003 (2) SA 363 (CC).
1
Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 2
(CC).
Carmichele v Minister of Safety and Security 2001(4) SA 938 (CC).
3
Children's Institute v Presiding Officer, Children's Court, Krugersdorp and 4
Others 2013 (2) SA 620 (CC).
Christian Education SA v Minister of Education 2000 (4) SA 757 (CC).
5
Christian Lawyers Association v Minister of Health and others (Reproductive 6
Health Alliance as amicus curiae) 2005 (1) SA 509 (T).
Equal Education and others v Minister of Basic Education and others 2021 (1) 7
SA 198 (T).
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and 8
Others [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC)
Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (7) BCLR 851;
9
1997 (3) SA 786
Glenister v President of Republic of South Africa(CCT 48/10) [2011] ZACC 6;
10
2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC).
Government of the Republic of South Africa and others v Grootboom and 11
others 2001 (1) SA 46 (CC).
H v Fetal Assessment Centre (CCT 74/14) [2014] ZACC 34; 2015 (2) BCLR 12
127 (CC); 2015 (2) SA 193 (CC)
63 Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC); Phillips v SA Reserve Bank 2013 (6) SA 450 (SCA) at paras 56 – 60, 75.
Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1.
13
In re Certain Amicus Curiae Applications: Minister of Health and Others v 14
Treatment Action Campaign and Others 2002 (5) SA 713 (CC).
Justice Alliance of South Africa v President of the Republic of South Africa and 15
Others [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC) K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 16
(9) BCLR 835 (CC) (K).
K
