Why Have You Been Silent - The Church and the Abortion Ban in South Africa


WHY HAVE YOU BEEN SILENT? THE CHURCH
AND THE ABORTION BAN IN SOUTH AFRICA

S. Talcott Camp*

Why have you been silent?

-Archbishop Desmond Tutu'

Mr. A J LEON [sic] asked the Minister of National Health and
Population Development:

(1) How many women had legal abortions in 1989 in terms of
the Abortion and Sterilization Act, No 2 of 1975;

(2) what is the estimated number of women who had illegal
abortions in that year?

The MINISTER OF NATIONAL HEALTH AND
POPULATION DEVELOPMENT:

(1) the number of legal abortions for the period January 1989 to
December 1989 reported up to 1 February 1990 is 785;

(2) no official figures on illegal abortions in the Republic of
South Africa are available.

-South African House of Assembly2

* B.A. Yale University, 1986; J.D. Columbia University School of Law, 1994.
The author is currently a law clerk to Justice Marie Garibaldi of the New Jersey
Supreme Court.

Anglican Archbishop of Cape Town Desmond Tutu, confronting African church
leaders about human rights violations in other African nations at the 1984 Vancouver
Assembly of the World Council of Churches, quoted in Charles Villa-Vicencio,
Towards a Theology of Nation Building: Church and State in Africa Today, 32 J.
Church & St. 851, 856 (1990).

2 House Assembly Proc. 556 (S. Afr.) (Mar. 20, 1990).



Columbia Journal of Gender and Law

INTRODUCTION

The contributors to this book are vocal in their criticism of the
church of [sic] preaching against apartheid while keeping
structures which perpetuate the subordination of women intact.
• . . The church failed to get involved with specific problems
women were experiencing in their communities, such as . . .
abortion ....

-Rhoda Kadalie3

Whether they perform the procedure on themselves or have someone
else do it for them, South African women who resort to illegal abortion
typically use sharp objects, such as knitting needles, or harsh chemicals,
such as chlorides (sold as "Clorox" in the United States). Every year,
300,000 of South Africa's twenty million women undergo illegal abortions.
They constitute about one in twenty-three fertile women. Many tens of
thousands of the clandestine, unsterile operations result in infection or
uncontrollable bleeding for the woman. The lucky ones receive life-saving
medical attention, which often includes the removal of their septic
abdominal organs. Others live, but suffer permanent medical trauma. The
unluckiest ones die-l,500 to 3,000 every year.' The discriminatory,
interrelated forces that lead women to such fearful methods coalesce in
South Africa's abortion ban, which is still in effect after the April 1994 free
elections.

Despite the staggering proportions of the phenomenon, the church in
South Africa has turned a blind eye and a mute tongue. What are the
theological implications of that silence? How is the church called to
respond to the medical fallout from South Africa's abortion ban? To follow
its own tenets, what must the church do in the face of a law that, though it
causes such anguish, was justified by the apartheid government in terms of
Christian principles? In this Article, I argue that it is theologically
imperative for the church to end its silence on several issues: the abortion
ban, the apartheid government's use of Christianity to justify the ban, the
ban's effect on women's lives, and the church's own tacit but powerful role
in relegating women's well-being to the bottom of the heap of theological
and political values. In ending its own silence, the church will also cease
its enforcement of the silence with which so many South Africans continue
to have illegal abortions.

' Rhoda Kadalie, Epilogue to Women Hold up Half the Sky: Women in the
Church in Southern Africa 391, 392 (Denise Ackermann et al. eds., 1991).

" See infra notes 46-55 and accompanying text.

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Church and Abortion Ban in South Africa

Examination of the church and the abortion ban involves medical,
political, legal, and theological issues. In Part I of this Article, I discuss
the theological imperative for the church to end its stubborn ignorance of
women's reality as shaped by the abortion ban. Part II is a discussion of
the multiple, complex forces that constituted apartheid. Part III addresses
the medical impact of the illegality of abortion. In Part IV, I explain the
law itself, and its operation in a still-divided society. Part V addresses the
role of the church to date. The Conclusion applies the doctrinal concerns
of Part I to the current political situation in South Africa.

As a preliminary matter, an explanation of certain terms and
approaches will make the main part of this Article clearer. First, the
"church" denotes the organized Christian community: the structures that
link all South Africans who call themselves Christian,5 and who do so
within the context of common worship-that is, within a denomination or
an independent congregation. When I write of actions or omissions on the
part of the church, the word refers to the various denominations and
independent congregations, and, ultimately, to their leaders as well.

Second, the term "African" has a specific meaning in the context of
South Africa, where it is impossible to find racial terms that are either
accurate or inoffensive. Using such obscene methods as measuring people's
noses, the architects of apartheid designated people as Black, white, Asian,
or Coloured, meaning of mixed European and African descent. Following
the current practice of many people who were called Black in apartheid
vocabulary, I use the term African in its stead. South African statistics,
like the society itself, remain largely divided into the four categories. For
example, in their homes, almost all Africans speak an indigenous language,
the most common ones being Zulu, Sotho, and Xhosa; almost all Coloured
people speak Afrikaans; almost all Asians speak English; and almost all
whites speak Afrikaans or English.6 Hence, in this Article, African does
not include Coloured people, whites, or Asians.

Third, I use the term abortion "ban" even though the South African
law is not, technically, an absolute prohibition on abortion. The law spells
out five narrow circumstances in which abortion is legal and details the
numerous steps a woman must take in order to obtain a legal abortion.
These steps include convincing at least three doctors, and usually four, that
she qualifies for a legal abortion. Even a woman who can meet all of these
requirements is entitled to a legal abortion only if the pregnancy poses a
serious threat to her physical or mental health, if the fetus is irreparably and

According to the 1991 population census, the majority of South Africans call
themselves Christian. South African Institute of Race Relations, Race Relations Survey
1993/94, at 89 (1994) [hereinafter Race Relations Survey 1993/941.

6 Id. at 86.

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seriously impaired, or if the pregnancy results from rape or incest.
However, as the apartheid government intended, the law operates as a
virtual ban: it results in about 1,000 legal abortions annually, most of them
for white women.7 I therefore refer to the law as a ban, its five narrow
exceptions notwithstanding.

Fourth, I use such statistics as are available. They are, in many
important instances, estimates and extrapolations. At a few points, I have
had to use two figures from different years in order to compute a third
figure. This problem is inherent in any topic, like this one, that has been
stalwartly ignored by those with the power to gather information and
compile statistics. That official nonfeasance has caused an information
vacuum, which makes talking and writing about abortion in South Africa
difficult. This difficulty results in a silence which, in turn, serves only to
expand the ignorance. These phenomena will continue, self-perpetuating,
until people analyze the subject, as well as the silence and ignorance
surrounding it, in spite of the paucity of information borne of obstructive
official neglect.

Fifth, in light of this goal of fostering awareness and discussion, it
would be ironic if this Article served to perpetuate a certain silence: that
of African and poor women in South Africa. As a white, middle-class
American, I risk merely substituting my own voice for theirs.! However,
I am not seeking to do that; rather, I am trying to address one of the
sources of their silencing-the church. Moreover, I have in common with
poor South Africans certain determinants of the laws that have shaped their
lives and mine. For example, "[w]e may come from totally different
backgrounds, but we share one Bible."9 Biblical gender oppression has
greatly influenced South African and American law, ° and it is in the Bible
that "man has named . . . God, in his own image."" The Bible, however,

7 See infra notes 95-101 and accompanying text.
s See Gertrud Wittenberg, The Song of the Poor Woman: The Magnificat (Luke

1:46-55), in Women Hold up Half the Sky, supra note 3, at 3, 18 (quoting Letlaka-
Rennert: "The alliance between black and white women at present is characterized by
silence and dependency on the part of black women on white women . . . . If you
continue in the long term to speak on the part of black women, you perpetuate, prolong,
and protract their silence.").

Renate Cochrane, Equal Discipleship of Women and Men: Reading the New
Testament from a Feminist Perspective, in Women Hold up Half the Sky, supra note
3, at 21, 25.

10 "The biblical representation of woman as subordinate to man operates to the
detriment of women, both religious and non-religious, because it is replicated in the
legal system." Angela L. Padilla & Jennifer J. Winrich, Christianity, Feminism, and
the Law, 1 Colum. J. Gender & L. 67, 87 (1991).

Denise Ackermann, Being Woman, Being Human, in Women Hold up Half the

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also offers a more felicitous vision of commonality: "Because there is one
bread, we who are many are one body, for we all partake of the one
bread."12 Being Christian, I partake of the bread, but hear Redemption in
the news that we are all one body, regardless of faith. Just as I apply this
vision to the need to break the silence about abortion in South Africa, an
American theologian has applied it more generally:

We are One Body, a unity through mutual participation ...
Genocidal practices waged against Armenians, Jews, . . . or
South Africans assault us all .... Injustice is the breaking apart
of the One Body .... Where there is no effort to create justice,
there is no love. 3

Finally, the theological implications of the act of abortion itself are not
within the focus of this Article. 4 I believe that discussion and knowledge
of the ban's effects will lead to liberalization of the South African law, but
that is not my initial goal. Instead, I am looking to the church-my
church-to acknowledge and talk about the reality of women's lives. As a
rule, Christian denominations have been silent on the South African
abortion law and its impact. Those that have made statements on secular
law15 have posited, as "the crucial question in the whole abortion debate[,]

'Has the foetus a human Life?"" 6  The church must begin
incorporating in its deliberations-in addition to respect for religious
liberty-full knowledge of real women's real lives, and awareness of the
church's role in constructing those lives. In other words, the church must
embrace women's reality. Once it does so, it will have to answer a
different question in relation to secular law. Rather than focus exclusively
on the status of the fetus, the church will have to address what it should
support the state in requiring of women on behalf of fetuses. Whatever
stance specific denominations take on the moral status of the fetus, they
must ask themselves what is "of God"17 for them to pronounce on the

Sky, supra note 3, at 93, 97.
12 1 Corinthians 10:17 (Revised Standard).

" Carter Haywood, Speaking of Christ, in Speaking of Christ: A Lesbian Feminist
Voice 23, 25 (Ellen C. Davis ed., 1989).

14 For an excellent account of the theological foundation for reproductive liberty,
see Beverly Wildung Harrison, Our Right to Choose: Toward a New Ethic of Abortion
(1983).

"5 Denominational positions on the morality (versus legality) of abortion and on the
moral status of the fetus are separate, albeit arguably predicate, questions.

"' Presbyterian Church of Southern Africa, Papers for General Assembly 80
(1983).

17 The term is from an article by a South African theologian:

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legal requirements the state puts on women. Regardless of the status it
accords the fetus, a church that remains ignorant of and indifferent to the
conditions of women's lives is engaging in the oppression of women."

Given that the church has exhibited and thereby sown just such
ignorance, this Article argues that, as South Africa yearns and reaches for
God's justice beyond April 1994, the church has two positive obligations.
First, it must repent of its silence about women's lives generally and about
the effect of the abortion ban specifically. Second, it must recognize that
part of its theological task is to insist that gender equality and awareness of
women's lives be reflected in the reproductive laws of the New South
Africa.

Because not everything in the Christian tradition and the Bible is liberatory, it
must be theologically acknowledged that not all that is found there is 'of God'
.. A distinction needs to be made between the residue of oppression found
within the Christian tradition and those parts of that tradition which constitute
the true message of liberation.

Villa-Vicencio, supra note 1, at 864.
S What male theologians, even liberation theologians, often overlook or fail to

emphasize is that the church's and the Bible's overt sexism is manifestly not "of God."
See id. Numerous female theologians have pointed out that misogynist church structure
and the excision of gender-inclusive gospels from the canon served the calculated
purpose of establishing the kind of oppressive political authority Jesus opposes.

[F]ollowing Jesus' death and resurrection, gender roles and expectations were
temporarily transcended ....

• ..By the end of the first century, itinerant preachers like Saint Paul
and, later, bishops . . . demonstrated their authority by insisting on the
exclusion of women from leadership roles. . . .Contraception and abortion
were forbidden to married women .... Clearly, control of Christian women's
roles, dress, and behavior were understood as central to male authority.

Margaret R. Miles, Carnal Knowing: Female Nakedness and Religious Meaning in the
Christian West 22 (1989).

Yet all the sources cited so far ... are among those not included in the
select list that constitutes the New Testament collection. Every one of the
secret texts which gnostic groups revered was omitted from the canonical
collection, and branded as heretical by those who called themselves orthodox
Christians .... [Virtually all the feminine imagery for God had disappeared
from orthodox Christian tradition.

What is the reason for this total rejection?

." [W]omen's activity challenged the leaders of the orthodox community

Elaine Pagels, The Gnostic Gospels 57, 64 (1979).

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I. THE CALL TO THE CHURCH

Sin is blind.

-Albert Nolan19

In this time of constitution-writing in South Africa, there are many
reasons why the church must end its blindness to women's lives as
determined by the abortion ban. Two reasons stand out.

First, the ban causes grotesque suffering in a massive portion of South
African women. According to its own precepts, the church has legitimacy
only if it addresses suffering, for "[slin is about suffering, about making
people suffer, allowing them to suffer or ignoring their sufferings. '

Hence, the suffering of the millions of South African women who have
undergone illegal, unsafe abortions is an explicit call to action on the part
of the church. Because "sin must be measured in terms of the amount of
pain and suffering it causes," 2 the sheer number of women whom the ban
forces to resort to desperate measures makes the call all the more urgent.
Furthermore, the ban's terribly disparate impact on poor women also
constitutes a special invocation to the church: "God has a special concern
for the poor not because of their virtue but because of their suffering ...
because they are the ones who are being sinned against. "' Given these
factors-that blindness to suffering is sin, that God has special concern for
the poor, and that the abortion ban causes great suffering among poor
women-Christian leaders, as Christians, must at the very least undertake
serious scrutiny of the ban and its impact. Because "theology's first task
... involves uncovering the causes of suffering[,... [t]he most important
political task of the church is 'to tell the truth.' . . . It is to analyze political
policy, to expose its consequences for the poor . . . . .. Since it is
African women whom apartheid has disempowered most acutely,' the

'9 Albert Nolan, God in South Africa: The Challenge of the Gospel 39 (1988).
20 Id. at 38 (emphasis added).
21 Id.
22 Id. at 66.
23 Villa-Vicencio, supra note 1, at 859-60.
24 See, e.g., Albie Sachs, Protecting Human Rights in a New South Africa 57

(1990) ("the social deformities and injustices created by apartheid fall with special
severity on women"); Race Relations Survey 1993/94, supra note 5, at 490 ("According
to the National Council of Women in South Africa, . . . women were the worst

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church's "truth-telling" should focus most particularly on those policies that
cause suffering among African women, including the abortion ban.

Second, the church is called to address specifically the suffering caused
by the abortion ban because the apartheid government justified it, as it
justified apartheid generally, on the grounds that it accords with Christian
morality. Commenting on the state's reliance on Christianity to justify
apartheid generally, one South African Anglican priest has written that "in
South Africa . . . Christians . . . have to face the reality of a faith which
has been and continues to be used as a justification for oppression. "'
That the apartheid state used the same tactic to justify the abortion ban is
also clear:

Incumbent ministers of health . . . have remained adamant that
. . . Christian ethics preclude the government from allowing
abortion on request.

. . . Churches base their opposition on the conviction that
the moment of fertilization is synonymous with the creation of
a new life and that liberalization of the abortion law will lead to
wide-scale immorality. . . . [A]lthough it is not the function of
the law generally to enforce religious dogma, the present
legislature in South Africa does not readily legislate in opposition
to the consensus of church opinion.'

The onus that such governmental reliance on so-called Christian
principles places on the church is evident in the Kairos Document. The
Kairos Document, which first appeared and generated voluminous debate
in 1985, is the work of Christian theologians, lay people, and church
leaders. It declared that the theology of apartheid (the defense of apartheid
on Christian grounds) was heresy, and that, with the Kairos in South
Africa, the church's day of judgment was at hand. As the Document itself
explains, "Kairos is the Greek word that is used in the Bible to designate
a special moment of time when God visits ... [God's] people to offer them
a unique opportunity for repentance .... It is a time of judgment. It is a
moment of truth, a crisis."27 Reflecting on the apartheid state's claim of
Christian justification, the Kairos authors wrote: "The oppressive South

affected by poverty because they were unable to obtain employment owing to lack of
language and technical skills. ... ").

25 Courtney Sampson, The Bible in the Midst of Women, in Women Hold up Half

the Sky, supra note 3, at 55, 58.
26 F.F.W. van Oosten & Monica Ferreira, Republic of South Africa, in

International Handbook on Abortion 416, 421 (Paul Sachdev ed., 1988). See also
Henriette Geldenhuys, Politics Dominates Abortion Issue, The Argus, May 15, 1992,
at 8 ("[Tlhe Conservative Party believes abortionis a sin.").

27 Institute of Contextual Theology, The Kairos Document: Challenge to the

Church 33 n. 1 (rev. 2d ed. 1986) [hereinafter The Kairos Document].

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African regime will always be particularly abhorrent to Christians precisely
because it makes use of Christianity to justify its evil ways."28 Because
the abortion ban remains grounded in purported Christian ethics, the church
must speak up. It cannot simply reinforce the status quo through its own
silence.

The Kairos Document, at its simplest, holds that Christian principles
do not and cannot support oppression, and that, indeed, the work of the
church is to bring about God's justice by opposing oppression. Should the
church sail through its own day of reckoning, committed to building a non-
racist, post-apartheid society, while nonetheless sitting in silent complicity
with the inseparable component of apartheid oppression that is sexism, it
will have missed the Kairos altogether. Unhappily, the church may well
believe that meeting the challenge of the Kairos was complete with the
ending of institutionalized racism. The error of that belief is clearest in its
failure to acknowledge sexism as a bedrock of apartheid.

II. THE STRUCTURE OF APARTHEID

We are none of us free unless we are all free.

-Popular watchword of the
anti-apartheid movement

The anti-apartheid movement, both inside and outside the church, had
a tradition of bifurcating its freedom fight by type of oppression.
Essentially, many men asked the women not to seek an end to their
oppression as women because doing so might split the anti-apartheid
movement down the middle. Women were rebuked by "the slogan that
some people use[d] to sideline the rights of women, namely 'liberation
first.' "" The argument was that issues of gender oppression had to wait

28 Id. at 8.
2' E.g., Christina Murray & Catherine O'Regan, Putting Women into the

Constitution, in Putting Women on the Agenda 33, 37-38 (Susan Bazilli ed., 1991):

The ranking of discrimination against women as a secondary problem
. . . is not altogether surprising.. . . [T]he charge of sexual oppression is
directed not only at white rulers but also at men committed to liberating South
Africa from apartheid rule. To a movement concerned with unity, the issue
could easily be perceived as divisive rather than strengthening.

30 Emma Mashinini, Women Between Church and Society, in Women Hold up

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out the "main" battle over racism, lest the issue of sexism split the forces
opposing apartheid. Women justly reacted, "I dislike the slogan,
'Liberation first, women's issues afterwards.' . . . I do not believe that the
issue of equality of women should be delayed in case it divides people in
the struggle."3

It is ironic that those men thought that bifurcating the liberation could
unify the movement. It is equally ironic that they put such stock in
constructing a hierarchy of oppression, for even if a hierarchy of oppression
were possible, ending de facto apartheid while leaving sexism intact is not
possible: "[T]he one issue does not take priority over the other as racial
and sexual discrimination are interlocked manifestations of oppression."2
"[R]acism and sexism are inseparable. . . . [T]heir interlocking reinforces
the very mechanisms which maintain them to the advantage of the
oppressors. . . . [They] go hand in hand in maintaining oppressive
structures . . . . " If the menu building the New South Africa would
realize that the heresy of apartheid was the bifurcation itself-of which the
institutionalized racism was certainly the most explicit example-they would
see that women's quest for justice is their own struggle as well. Unless the
men take that step, the mission to heal the wounds of apartheid will fail,
and the Kairos will pass by unrealized. Because "the social deformities and
injustices created by apartheid fall with special severity on women, . . . the
rights of women and the ending of apartheid are inextricably linked."35

In other words, since apartheid was a tyranny of mutually reinforcing
oppressions, those who thought it served the struggle to maintain unity at
women's expense fundamentally misconstrued the enemy. After all the
struggle, is it not the case that "we are none of us free unless we are all
free"? Can it be, in South Africa today, that many men think they can be
free even as most women remain oppressed?

In theological terms, it simply will not do to disavow the vision that
"there is neither male nor female; for you are all one in Christ Jesus" 36 as
a description of some other, after life. Since "the presence of the spirit of

Half the Sky, supra note 3, at 345, 348.
" Brigalia Bam, Seizing the Moment: Women and the New South Africa, in

Women Hold up Half the Sky, supra note 3, at 363, 366.
Murray & O'Regan, supra note 29, at 38-39.

" Denise Ackermann, Women, Violence and Theology, in Theology and Violence:
The South African Debate 255, 256-57, 259, 261 (Charles Villa-Vicencio ed., 1988).

- Certainly there are women, in greater numbers than ever, participating in South
African government, but I am addressing the stance of men.

3 Sachs, supra note 24, at 57.
36 Galatians 3:28 (Revised Standard).

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love, the source of justice, [is] . . . ours to actualize,"37-since the reign
of God is most emphatically ours to build in this life-it is precisely "the
task of the church to forward the coming of the Kingdom [the reign]."3"
The reign is not coming while women remain oppressed. Because the
silence and ignorance that surround abortion in South Africa are part of that
oppression, the task of the church includes addressing those phenomena.
The obvious starting point for the church's analysis is its own complicit,
powerfully generative silence on the suffering the ban causes.

Ultimately, what the church must realize is that "the impoverishment
of the church is [not] the most important consequence of the sin of the
oppression of women. It is much more fundamental than that. It is the
heretical denial of the wholeness of the creation. "" Through action and
inaction, the church has oppressed women and thereby denied the wholeness
of God's creation, and that, in a theological nutshell, is the sin of apartheid.

To those for whom my challenge to the church seems an affront, I can
respond only that I love the church, but that "[]ove without anger is not
only pale and apathetic, it is not love at all. . . . Those who cannot get
angry about what is happening in South Africa have no real love for
people[,] . . . [and] no experience of God."' The Kairos Document and
other declarations4 are proof enough that the church has pointed an angry
finger at itself on account of its complicity in oppressive laws; as a
Christian and a lawyer, I am addressing a lacuna in that finger's aim.

3 Carter Haywood, Living for the Living: Theological Lessons from Nicaragua,
in Speaking of Christ, supra note 13, at 26, 27.

38 Phoebe Swart-Russell, Towards Our Liberation: A New Vision of Church and
Ministry, 66 J. Theology S. Afr. 34, 42 (1989).

" Sheena Duncan, Some Reflections on Rustenburg, in Women Hold up Half the
Sky, supra note 3, at 386, 387-88.

0 Nolan, supra note 19, at 104.
41 See, e.g., The Rustenburg Declaration, 74 J. Theology S. Afr. 64 (1991). For

an explanation of the Rustenburg Declaration, see Duncan, supra note 39, at 386.

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III. THE MEDICAL FALLOUT FROM THE ABORTION BAN

It is clear that there can never be a reconciliation of medical
needs with absolutist anti-abortionist views whether on ethical,
religious or moral grounds. In any case, large sections of
society do not seem to share these anti-abortion views as is
evidenced by the number of women admitted to gynaecological
wards for treatment of septic abortions ....

-L.S. Gillis42

Seventy women-some as young as 14-were treated for botched
abortions at Baragwanath Hospital this week.

-Ike Motsapi43

There is another kind of silence about abortion in South Africa: the
lack of information on the actual number of women who undergo the
procedure illegally. "Negligible research has been undertaken in South
Africa . . . . No comprehensive epidemiological studies have been
undertaken of either legal or illegal abortions, and there is a lack of reliable
information on morbidity and mortality rates . . . ."" Since there has
never been a systematic nationwide study, estimates rely on and extrapolate
from hospital-specific statistics on admissions to gynecological wards for
complications that stem from back-street or self-induced abortion. Despite
the paucity of accurate nationwide statistics, there is no dispute that illegal
abortion is a leading cause of death and morbidity among women, and a
leading cause of gynecological hospital admissions.45

12 L.S. Gillis, Teenage Pregnancy, 77 S. Afr. Med. J. 121, 121 (1990).
43 Ike Motsapi, Abortion Horror, Sowetan, Nov. 22, 1991, at 1.
14 Van Oosten & Ferreira, supra note 26, at 420. See also Hilda Bernstein, For

Their Triumphs and for Their Tears: Women in Apartheid South Africa 51 (rev. ed.
1985); Desir6e Hansson, Working Against Violence Against Women, Recommendations
from Rape Crisis (Cape Town), in Putting Women on the Agenda, supra note 29, at
180, 186; Desir6e Hansson & Diana E.H. Russell, Made to Fail: The Mythical Option
of Legal Abortion for Survivors of Rape and Incest, 9 S. Afr. J. on Hum. Rts. 500,
520 (1993) ("[Ilssues affecting women have been neglected in most spheres, including
empirical research.").

45 E.g., E.B. Melrose, Maternal Deaths at King Edward VIII Hospital, Durban,
65 S. Afr. Med. J. 161, 162 (1984).

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On the basis of these extrapolated estimates, there is also some
consensus in the medical community on the annual rate of illegal abortion:
approximately 300,000 South African women undergo illegal abortions
every year." "From the few histories available it appears that abortion
methods commonly used include intra-uterine injection via a catheter of
chemicals such as chloroxylenol, washing blue or soapy solutions. Patients
have also described the use of herbal enemas, knitting needles, oral quinine,
castor oil and laxatives. "47  Assuming that half of South Africa's total
population of 40.3 million48 is female, 49 approximately one in sixty-seven
females of all ages has an illegal abortion each year. Since the fertile
female population (fifteen to forty-nine years old) is approximately seven
million,' about one in twenty-three fertile women-4.5%-has an illegal
abortion each year. Because there is so little information available about
abortion in South Africa, it is impossible to know how many women have
repeat abortions each year; whatever the repeat rate, however, the
percentage of South African women who have at least one illegal abortion
in their lifetimes is staggering-probably about 50% .s

Equally staggering is the number of women who die from them.
Causes of death resulting from back-street abortions include: septicemia

46 Helen Rees, Women and Reproductive Rights, in Putting Women on the

Agenda, supra note 29, at 209, 213; ANC Pushes Ambitious Health Plan, Chi. Trib.,
May 19, 1994, at llN; Race Relations Survey 1993/94, supra note 5, at 130; Legal
Resources Centre, Handbook of Public Interest Law 189 n.76 (2d ed. 1993). See also
van Oosten & Ferreira, supra note 26, at 419; Hansson & Russell, supra note 44, at
522 (citing Rees); Christina Murray & Catherine O'Regan, Women's Rights, 3 S. Afr.
Hum. Rts. Y.B. 244, 250 (1992).

4 A. Richards et al., The Incidence of Major Abdominal Surgery After Septic
Abortion-An Indicator of Complications Due to Illegal Abortion, 68 S. Afr. Med. J.
799, 800 (1985).

48 This figure includes the former "homelands." Race Relations Survey 1993/94,
supra note 5, at 82.

4' This assumption-that 50% of the overall population is female-will have to
suffice because female/male distribution statistics are not available for the former
"independent homelands." However, the assumption is well founded: the distribution
for the population excluding those areas is almost exactly 50%/50%. Id. at 85.

- 1990 SA Health Report, ARAG Newsletter (Abortion Reform Action Group,
Natal, S. Afr.), Sept. 1991, at 2. The number of fertile women may sound low in light
of the 40.3 million overall population, but it is not surprising given that 44% of that
population is 19 years of age or younger. Race Relations Survey 1993/94, supra note
5, at 89.

"' Dr. Stanley Henshaw has estimated this figure-the overall abortion rate-to be
around 30% to 50%. However, he bases that estimate on an annual abortion rate that
I suspect is too low: approximately 230,000. For that reason, I have assumed that the
top end of his estimate, 50%, is probably more accurate than the low end. Telephone
Interview with Dr. Stanley Henshaw, Deputy Director of Research, The Alan
Guttmacher Institute (Oct. 12, 1994).

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Columbia Journal of Gender and Law

(blood poisoning caused by infection), renal (kidney) failure, shocked lung,
peritonitis (abdominal inflammation caused by infection), hemorrhaging,
irreversible brain damage, and liver necrosis.52 Assuming a mortality rate
of five to ten per 1,000," approximately 1,500 to 3,000 South African
women die annually because of illegal abortion. It is interesting to compare
this figure with the estimate that a little over 2,000 South Africans died on
average in "political violence" each year from 1985 to 1993.1 In a sense,
women who die because of unsafe abortion also die from political violence:
it is the illegality of abortion, combined with poor women's inability to
circumvent the law, that makes abortion fatal for women.

Whatever the exact number who die, a much higher number of women
survive, but suffer serious and often permanent medical sequelae, otherwise
known as morbidity. In addition to the conditions listed above as causes of
death, survivors of illegal abortion also suffer infection, permanent sterility,
gangrene of the cervix, hysterectomy, other medical damage,55 and the
psychological trauma of undergoing the operation under clandestine, dirty,
and often wretched conditions.56 Annually in South Africa, there are
35,000 to 40,000 operations for the removal of residues of
pregnancy17--that is, life-saving surgeries to clean out a woman's uterus
after an incomplete abortion or miscarriage-and an estimated 90 % of these
residue removals result from illegal abortion.58 Of course, the number of
residue removals in hospitals does not begin to represent the extent of
morbidity that results from illegal abortion. This is because poor women,
African women, and rural women are least likely to obtain medical care
even when suffering from morbidity associated with a botched abortion:
health care is desperately inadequate for the non-white population.59 The

52 Melrose, supra note 45, at 163.

. Van Oosten & Ferreira, supra note 26, at 420.
." Race Relations Survey 1993/94, supra note 5, at 27. The death toll from

political violence was approximately 3,347 for 1992 and 3,706 for 1993. Id. at 653.
" Richards et al., supra note 47, at 800.
16 Ingrid Norton, More Abortions in S Africa than in UK, The Star (S. Afr.), Feb.

10, 1984, at 6M.
17 Murray & O'Regan, Women's Rights, supra note 46, at 250; 1990 SA Health

Report, supra note 50, at 2.
58 Van Oosten & Ferreira, supra note 26, at 419. See also Annual Report of the

Department of Health and Population Development, ARAG Newsletter (Abortion
Reform Action Group, Natal, S. Afr.), Aug. 1990, at 2; Editorial, Termination of
Pregnancy on Psychiatric Grounds, 63 S. Afr. Med. J. 633, 633-34 (1983).

" See, e.g., 1990 SA Health Report, supra note 50, at 2 (the maternal mortality
rate is three and one-half times higher for Africans than for whites); Race Relations
Survey 1993/94, supra note 5, at 128 (the infant mortality rate is six times higher for
Africans than for whites, and almost five times higher for Coloured people than for

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Church and Abortion Ban in South Africa

anguish of women who receive no medical care has neither registered in
hospital statistics nor, at least until quite recently, garnered any official
recognition.

IV. THE LEGAL REGIME

[W]hen they went for examinations, as the first step in the
difficult road to a legal abortion, they had been made to strip and
lie with their legs up instirrups [sic] while doctors examined
them and then stood around discussing the merits of the abortion
request, with the woman remaining in the same demeaning
position.

-Charlene Smith'

One of the features of the South African abortion law that marks it
most clearly as a component of apartheid is the way it degrades and
intimidates the citizenry. The Abortion and Sterilization Act of 1975 (the
Act) replaced the Roman-Dutch common law in this area, under which

whites); id. at 120 (in 1991, 69% of whites had health insurance, as against 33% of
Asians, 29% of Coloured people, and 7% of Africans); id. at 48 (47% of health
expenditure benefits 23% of the population; 55% of doctors serve 30% of the
population); id. at 107 (although there is on average one doctor for every 1,000 South
Africans, the ratio ranges from I for every 10,000 to 1 for every 30,000 in the former
"homelands"); Sachs, supra note 24, at 80 (life expectancy is 20 years lower for
Africans than for whites).

Because of the existing inadequacy of health care for non-whites, and for Africans
in particular, the drain that illegal abortion puts on scarce hospital beds, health care
rand, and blood supply is especially dire for Africans. See, e.g., Richards et al., supra
note 47, at 800; Bernstein, supra note 44, at 51. See also South African Institute of
Race Relations, Race Relations Survey 1991/92, at 123-25, 134 (1992) [hereinafter
Race Relations Survey 1991/92] (describing shortage of hospital beds and blood supply
the apartheid government made available for Africans).

Not surprisingly, white women also have much better access to contraceptives than
do the majority of South African women. See, e.g., Mary Roberts and M.R. Rip,
Black Fertility Patterns-Cape Town and Ciskei, 68 S. Afr. Med. J. 481 (1984)
(discussing lack of access to family-planning services for African women). See also
Rees, supra note 46, 209-12 (discussing not only lack of information about and access
to contraceptives, especially in rural/"homeland" areas, but also inappropriate or forced
administration of contraceptives to African women); Contraception: Fighting for the
Right to Choose, The Rock: Breaking the Culture of Silence (African National
Congress Women's League, Johannesburg, S. Afr.), Mar. 1992, at 8 (describing
prescription of injectable contraceptive Depo-Provera without women's consent).

I Charlene Smith, SA-Style Abortion Angers Women, Sunday Trib., Feb. 26,
1984, n.p. (on file with author).

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Columbia Journal of Gender and Law

abortion was legal only to save the life of a pregnant woman.6 On a
superficial level, the Act expanded grounds for legal abortion. In practice,
the law gives a series of legal and medical authority figures the power to
interrogate the woman and to veto her decision to abort. "In South African
society, in most cases these decision-makers are economically privileged,
white men. . . . [w]ho are hardly well-equipped to understand the best
interests of applicants who are likely to be black and/or economically
disadvantaged girls or women."'62 Not surprisingly, the commission that
designed the Act was exclusively white and male.63 That the abortion ban
was part and parcel of apartheid becomes clear through an examination of
"how [it] .. . manages severely to restrict women's access to abortion even
in the few exceptional circumstances in which abortion is legally
permitted. "'

Under the Act, a woman may obtain a legal abortion only from a
registered medical doctor65 in a state-controlled or state-designated
hospital,' and only if:

- "continued pregnancy endangers the life of the woman concerned
or constitutes a serious threat to her physical health";67

- "continued pregnancy creates the danger of permanent damage to
the woman's mental health" ;68

- there is a "serious risk that the child to be born will .. .be
irreparably seriously handicapped";69

61 Van Oosten & Ferreira, supra note 26, at 416; Hansson & Russell, supra note

44, at 500; see generally S.A. Strauss, Therapeutic Abortion: Two Important Judicial
Pronouncements, 46 S. Afr. Med. J. 275 (1972).

62 Hansson & Russell, supra note 44, at 507.
(3 Id. at 500; Law for Those Who Don't Get Pregnant, Sunday Express, July 29,

1984, at 8; Jeremy Sarkin-Hughes & Nancy Sarkin-Hughes, Choice and Informed
Request: The Answer to Abortion, 1 Stellenbosch L. Rev. 372, 373 (1990); Dot
Cleminshaw, Giving Women a Better Law, S. Afr. Outlook, Oct.-Nov. 1990, at 312,
313.

' Hansson & Russell, supra note 44, at 506.
65 Abortion and Sterilization Act, No. 2, § 3(1) (1975), as amended by Act No.

48 of 1982.
66 Id. § 5(1).
67 Id. § 3(l)(a).
68 Id. § 3(l)(b) (emphasis added).
69 Id. § 3(1)(c).

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Church and Abortion Ban in South Africa

- the "foetus is alleged to have been conceived in consequence of
unlawful carnal intercourse,"' defined as "rape and incest";7
or

- 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. "'

The penalty for performing or obtaining an abortion in violation of the Act
is a fine of up to 5,000 rand' and/or a prison term of up to five years.74

Prosecutions under the Act are infrequent, but every year prosecutors
charge a few doctors,75 others who perform abortions, and women who
obtain abortions or self-abort:76 Over eighty people were actually
convicted under the Act in the three years from July 1988 to June 1991; 7"
for the twelve-month period beginning in July 1990, thirty-three people
were prosecuted, of whom ten were male; and for the immediately
following twelve-month period; twenty-one people were prosecuted, of
whom six were male.78

To obtain a legal abortion, a woman must persuade the doctor who
would perform an abortion to initiate a written application on her behalf,79

although "finding an amenable doctor is usually an arduous and sometimes
an impossible task."'  The woman must then obtain written certification
from two physicians, in addition to the doctor who will perform the
abortion, that the exception applies in her case."' Finally, she must obtain

70 Id. § 3(l)(d).

71 Id. § 1.
72 Id. § 3(1)(e).
71 In 1992, "the average monthly household income for Africans, coloured people,

Indians, and whites was R912 1912 rand], R1793, R2880, and R5163 respectively."
Race Relations Survey 1993/94, supra note 5, at 484.

7' Abortion and Sterilization Act, No. 2, § 10(1) (1975), as amended by Act No.
48 of 1982.

7' E.g., van Oosten & Ferreira, supra note 26, at 420; Doctors Doing Abortions,
ARAG Newsletter (Abortion Reform Action Group, Natal, S. Afr.), Oct. 1992, at 4.

76 For a detailed explanation of why each of those categories of people is
vulnerable to prosecution, see C.R. Snyman, Criminal Law 388 (1984).

"7 Race Relations Survey 1993/94, supra note 5, at 130.
7' Desirde Hansson, Selected Statistics on the South African Criminal Justice

System, 6 S. Afr. J. Crim. Just. 337, 343 n. 7 5 (1993).
7' Abortion and Sterilization Act, No. 2, § 6(2) (1975), as amended by Act No.

48 of 1982.
0 Hansson & Russell, supra note 44, at 506.

81 Abortion and Sterilization Act, No. 2, § 3(1)(a)-(e) (1975), as amended by Act
No. 48 of 1982.

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Columbia Journal of Gender and Law

the written authority of the physician in charge of the hospital.' Because
the physician in charge of the hospital may be one of the two corroborating
physicians,' the woman may be able to involve only three doctors,
including the one who will perform the abortion. More commonly,
however, the physician in charge is not one of the two corroborators, so the
woman must persuade four doctors." The two corroborating physicians
and the head of the facility are all to employ such interrogation of the
woman as they deem necessary to ensure that she qualifies for a legal
abortion under one of the Act's exceptions to the general ban. 5

There are yet further requirements, making it all the more difficult for
women to obtain legal abortions. The Act limits the pool of doctors who
may make and support applications for legal abortions. Neither of the two
corroborating physicians may practice with, or have the same employer as,
the doctor who will perform the abortion, and neither may "participate in
or assist with" the abortion.' One of the two must have practiced for at
least four years. s7 If the woman is seeking a mental health exception, then
one of the two corroborating physicians must be a psychiatrist employed by
the state."8 If she "alleges" that she conceived through rape or incest, then
one of the two corroborating physicians must be the district surgeon (a state
employee) who examined the woman when she reported the rape or incest,
if she reported it. 9 In addition, a woman cannot obtain a legal abortion
under the rape or incest exception unless a magistrate (from the district
where the alleged violation took place) has certified several facts in writing:
that the woman or someone else reported the unlawful intercourse to the
police, or that there is a good reason, in the magistrate's opinion, why no
one reported it;' that, based on police documents and the magistrate's
own "interrogation" of the woman, the unlawful intercourse took place;9

that the woman has stated in an affidavit or in a sworn statement to the
magistrate that the pregnancy results from the unlawful intercourse;' and

- Id.. § 6(1).
83 Id. § 6(3).

s Hansson & Russell, supra note 44, at 507 n.39.
85 Abortion and Sterilization Act, No. 2, §§ 3(l)(a)-(e), 6(6) (1975), as amended

by Act No. 48 of 1982.
86 Id. § 3(2)(a).
87 Id. § 3(3)(a).
8' Id. § 3(3)(b).

9 Id. § 3(3)(c).
- Id. § 6(4)(a)(i).
9' Id. § 6(4)(a)(ii).
9 Id. § 6(4)(b).

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Church and Abortion Ban in South Africa

that, for incest, the woman and the man were closely enough related to
justify an abortion.'

In sum, a woman seeking a legal abortion must convince three or,
more commonly, four doctors that she qualifies under the Act. If she seeks
a mental health exception, one of the doctors from whom she gets a written
certification must be a state employee. If she is pregnant as a result of rape
or incest, she must get certification from the district surgeon, unless she did
not report the incident, in which case she must convince a magistrate that
she had a good reason for not reporting it. Whether or not she reported it,
she must convince the two corroborating physicians and the magistrate that
the unlawful intercourse took place and that it is the cause of the pregnancy.

Even for those who make it through that maze, only 40 % are granted
legal abortions.' Such disapproving, bureaucratic obstacles would deter
even many privileged women. Predictably enough, African and non-white
women generally-poor women, women without access to and sympathy
from the majority of government officials, or women who speak neither
English nor Afrikaans-do not obtain safe, legal abortions even when they
fall under one of the Act's exceptions. There is, in understated terms, an
"unequal opportunity for nonwhite women to obtain a legal .... 95

The complicated bureaucracy in obtaining permission for an
abortion is the antithesis of a system which safeguards and
promotes physical and mental health. Many women who would
otherwise be entitled to an abortion even within the rigid
restrictions of the act, often resort to backstreet abortions,
because of the insensitive procedural complexity which impedes
a woman's need for immediacy, empathy and confidentiality.9

Indeed, since the Act's passage, its application has consistently resulted in
about 400 to 1,000 legal abortions granted per year, the great majority of
them on mental health grounds, and almost all of those for white women.
Keeping in mind that South Africa's population of 40.3 million is 76%
African, 13% white, 8% Coloured, and 3% Asian,' some statistics on the
racial distribution of legal abortions will elucidate the enormous racial
discrimination with which the apartheid government enforced the Act.

93 Id. § 6(4)(a)(iii).

" Craig Lind, Rape Thy Wife-Abort Thy Child?, 18 Businessman's L. 158, 158
(1989); Anne Hilton, Abortion: A Matter of Life and Death, Mayibuye: Journal of the
African National Congress, Aug. 1992, at 28.

" Van Oosten & Ferreira, supra note 26, at 419.
96 Sarkin-Hughes & Sarkin-Hughes, supra note 63, at 375.
" Race Relations Survey 1993/94, supra note 5, at 84.

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Columbia Journal of Gender and Law

For the years 1983 to 1985, only 4% of the legal abortions were for
African women, although Africans constitute 76% of the population; 80%
of the legal abortions were for white women, although whites constitute
only 13% of the population; and 13% and 3% of the legal abortions were
for Coloured and Asian women, respectively.9" For twelve-month periods
in 1984 to 1985 and 1988 to 1989, there were 712 and 963,legal abortions,
respectively. In the earlier period, 79% were for white women, 5.3% were
for African women, and 609 women-presumably almost all of them
white-went to Britain to obtain safe abortions. In the later period, the
percentage of legal abortions that were for white women remained an
almost constant 76% .9 Other sources indicate that the proportion of legal
abortions that were for white women was 73% in 19890 ° and 69% in
1990.101

The reasons why white women are so much better able to negotiate the
Act's byzantine requirements are manifold and, to some degree, obvious.
After all, disenfranchising all but the white minority was the explicit
function of apartheid. Nonetheless, examination of how the Act functioned
under apartheid-and how, to a large extent, it continues to
function-provides a good example of why it is impossible to segregate
gender from all the other planes on which apartheid operated, including
race, financial means, class, cultural and linguistic heritage, faith, and
educational level. These factors interact with the provisions of the Act to
make legal abortion practically inaccessible to all but a few wealthy, mostly
white women.

For instance, the mechanism for obtaining a mental health exception,
which has been the most common justification for legal abortions under the
Act,"° illustrates the multiple factors which make legal abortion a near
impossibility for poor, African women. First, there is the scarcity of
medical personnel. Because there are so few state psychiatrists-only
twenty-seven in the mid-1980s,103 and few, if any of them,

98 Van Oosten & Ferreira, supra note 26, at 418-19.

9 Sarkin-Hughes & Sarkin-Hughes, supra note 63, at 376; Annual Report of the
Department of Health and Population Development, supra note 58, at 2. See also Di
Caelers, Clamour for Legal Abortion, Weekend Argus, Nov. 1, 1992, at 8 (putting
number of women who travel to Britain for abortions every year at 500).

"00 Dying for Legal Abortions, The Rock: Breaking the Culture of Silence
(African National Congress Women's League, Johannesburg, S. Afr.), May 1992, at
11.

101 Hilton, supra note 94, at 28.

" Lind, supra note 94, at 158; Women's Health Project, Abortion 1 (on file with
author); Hansson & Russell, supra note 44, at 521 n.130 (in 1992, 77% of legal
abortions were on psychiatric grounds).

103 Bernstein, supra note 44, at 51.

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Church and Abortion Ban in South Africa

African"-it is extremely difficult for poor women, and especially
women in rural areas, even to see a state psychiatrist. That requirement
adds to the expenses the woman must bear.1 5 Furthermore, "there is a
geographical maldistribution of medical personnel, with a shortage in rural
areas and in the homelands."'"' ° For millions of rural South Africans, it
would be extremely difficult just to contact three doctors, let alone get them
to certify that an abortion request qualifies under one of the Act's
exceptions. Second, there is the related factor of differential rates of
urbanization: less than 50% of Africans live in cities, whereas over 80%
of each of the other ethnic groups live in cities." 7 Given the shortage of
medical personnel in rural areas, "[tihe loss of earnings, together with the
financial outlay necessary for travel, as well as the numerous medical
consultations and other procedures, places legal abortion out of the reach
of. . . the vast majority of women .... "108 Third, there is the language
barrier. Even if a poor woman from a rural area could somehow get the
money to travel to see a state psychiatrist-which would be very difficult
given pay scales and unemployment rates in rural areas"1-it is unlikely
that she would be able to communicate with that state employee unless she
spoke English or Afrikaans. Fourth, since women seeking abortions must
obtain written applications and certifications from doctors, literacy poses an
obstacle for African women. According to one source, the illiteracy rate
is 78% for Africans, 55% for Coloured people, 23% for Asians, and 2%
for whites.' While I have found no statistics on the racial breakdown
of the women who actually request abortions through legal channels, the
tenor and financial burden of the Act's administrative requirements, as
reflected in the mental health exception, suggest that those who attempt
legal abortion are disproportionately white, well educated, and urban.

The multiple, interlocking forces of apartheid are also evident in the
operation of the Act's rape exception. Iri order for a woman pregnant as
a result of rape to get a legal abortion, she must have either reported the

"0 The Church of the Province of Southern Africa, Summary of Report of CPSA
Commission on Abortion 4 (1977); Women's Health Project, supra note 102, at 1-2
(citing Dr. G.G. Mbere).

o' Hansson & Russell, supra note 44, at 520.
'06 Race Relations Survey 1993/94, supra note 5, at 122.
07 See id. at 84, 95-96.

108 Hansson & Russell, supra note 44, at 510.

")9 "[Tlhe poverty level in rural areas of South Africa . . . was approximately
twice as high as in urban areas. In rural areas 68% of Africans lived below the
minimum living level .... [Riural areas were populated by a greater number of the
unemployed and unemployable people ... " Race Relations Survey 1993/94, supra
note 5, at 491.

"0 Race Relations Survey 1991/92, supra note 59, at 213.

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Columbia Journal of Gender and Law

rape to the police or gotten a magistrate to certify that she had a good
reason not to report. Tragically, South Africa has an extremely high
incidence of rape: an estimated 350,000 women are raped each year, or
about one woman in fifty-five."' The fact that the great majority of those
women do not report the assaults"2 makes it all the more difficult for
them to qualify for legal abortions under the Act. 3 Indeed, only forty
legal abortions took place under the rape exception in 1984,"' and only
fifty took place in 1992, out of a total of 1,027."' Because of factors
similar to the ones that make legal abortion under the mental health
exception inaccessible, the rape exception "is of little value to all but the
most economically and racially privileged rape . . . survivors." ' 6

Furthermore, rape by white, male employers of African, female,
domestic workers is almost a clich6 in South Africa." 7 For example, in
Athol Fugard's Playland, Gideon, a white character, describes the
prevalence of the phenomenon to Martinus, an African character:

We've all done it. And just like you said, knocked on that door
in the backyard, then drag her on to the bed and grind her arse
off on the old coir mattress. That's how little white boys learn
to do it. On your women!

And you want to know something else, Swapo? They like
it from us! Your woman was crying crocodile tears. I bet you
anything you like she had a bloody good time there with the baas
humping away on top of her.'

... Jacklyn Cock, Putting Women on the Agenda, in Putting Women on the
Agenda, supra note 29, at 27, 29 (estimating number of rapes per day at 1,000). See
also Bernstein, supra note 44, at 52 (citing annual estimates of rape ranging from
146,000 to 300,000); Race Relations Survey 1993/94, supra note 5, at 297 (putting the
rate of rape in South Africa at three times the U.S. rate).

12 Hansson, supra note 44, at 186.
..3 Hansson & Russell, supra note 44, at 511-14 ("[A] survivor who does not

report rape . . . and later wishes to make application to legally terminate a resulting
pregnancy, has a reduced chance of acquiring magisterial permission for a legal
abortion.").

114 Hansson, supra note 44, at 186.
15 Hansson & Russell, supra note 44, at 521.
116 Id. at 506.

" See, e.g., Melissa Cole, "Inthuthuko Means That We Are Going Forward":
Hearing the Voices of Domestic Workers in South Africa, 2 Colum. J. Gender & L.
61, 93 (1992); Isabel Wilkerson, Hard Life is Getting Harder for South Africa's
Domestics, N.Y. Times, Oct. 17, 1994, at Al, A10 ("In the harshest cases . . .
domestics . .. are beaten, raped or killed ....

III Athol Fugard, Playland 50 (1992).

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Church and Abortion Ban in South Africa

Despite this, one Anglican theologian has observed, "I have never
heard a sermon on rape.""' 9 Like the church, and because of the church,
the women in question also remain silent. Given the desperate employment
situation of domestic workers, who are generally very poor African women
without specialized, marketable skills, the risk of job loss effectively deters
them from reporting employer rape. Domestic workers are at risk of being
dismissed for objecting to sexual advances," 2 and are often fired for just
asking for a raise.' The emotional and financial despair that apartheid
caused are important to understanding the dynamic at issue here. As
women and as Africans, these domestic workers, by government design,
suffered particular educational deprivation because worker desperation was
part of what kept the apartheid economy ticking. Even today, "[tihey can't
leave because it's the last stop. Some are illiterate. There are no other
jobs for them."'22  Domestic workers in South Africa suffer regular
reminders that if they complain, fail in their duties, or ask for a raise, they
can easily be replaced with one of countless other women looking for work.
Many of them, then, endure endless cruelties, including rape, in silence.
A woman pregnant under these circumstances, who has not reported her
employer to the police, is not readily eligible for a safe abortion under the
Act. Nor is she meant to be: she is a poor, African woman, and the
apartheid government, out of intention, did not design the Act for her.

V. THE ROLE OF THE CHURCH TO DATE

I want to query the morality of organised religion ... assuming
it has a contribution to make to the spiritual reconstruction of our
society .. while it takes no cognisance of women's experience.

-Denise Ackermann' 23

As noted in the Introduction, both the suffering caused by the abortion
ban and the apartheid government's summary grounding of the ban on
Christian principles constitute an explicit call to the church. This call the

"' Interview with Denise Ackermann, Senior Lecturer in Practical Theology,
University of the Western Cape, in New York, N.Y. (Nov. 3, 1992).

1"0 Cole, supra note 117, at 93.
121 Id. at 79.

" Aubrey Lekwane, Deputy Regional Director, Lawyers for Human Rights,
quoted in Wilkerson, supra note 117, at A10.

123 Denise Ackermann, Women, Religion and a Democratic Society: Putting
Women on the Agenda, in Believers in the Future: Proceedings of the National Inter-
Faith Conference on Religion-State Relations 30, 33 (1991).

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Columbia Journal of Gender and Law

church has refused to answer. "There is an embarrassed silence from
religious and political leaders. . . . mhose whose role it is in shaping
public opinion are guilty of dereliction."'"

This abnegation on the part of the church is evident in an informal poll
of church leaders I did in August 1992, with names provided by the South
African Council of Churches. I telephoned and/or wrote to these leaders
(all men, variously called general secretary, scribe, moderator of the
general assembly, or simply leader) to ask whether their denominations had
ever considered the abortion ban or its medical impact on women. Almost
all of them were resistant to being quoted by name. In the interest of
getting at least some response, I therefore did not push for permission to
use their names. The denominations I actually reached include: The Zion
Christian Church, which is one of the largest single denominations in South
Africa and is almost entirely African; 1  The Evangelical Presbyterian
Church in Southern Africa; The Evangelical Lutheran Church in Southern
Africa; The Nederduitse Gereformeerde Kerk in Afrika (The African Dutch
Reformed Church); The Nederduitse Gereformeerde Sending Kerk (The
Coloured Dutch Reformed Church); The United Congregational Church in
Southern Africa; The Reformed Presbyterian Church in South Africa; The
African Methodist Episcopal Church; and The African Congregational
Church. I also reached The Council of African Independent Churches.
The following actual responses were typical:

- "We have made no statement."
- "We've never been asked to get involved in this issue."
- "We have no written statement, but strong, traditional views. We

haven't discussed the medical results of illegal abortions."
- "We've had nothing in our hands that could help us make a

statement-no research. We have not discussed it as such."
- No response, even when I fulfilled the leader's request for a

detailed letter explaining the query and my interest in the
subject."

In short, the church has, for the most part, resolutely ignored the medical
impact of the abortion ban. Given the church's influence within South
African society, its lack of concern or at least failure to respond-despite

124 Cleminshaw, supra note 63, at 312.
125 Race Relations Survey, supra note 5, at 89; Bill Keller, A Surprising Silent

Majority in South Africa, N.Y. Times, Apr. 17, 1994, §6 (Magazine), at 34.
126 Telephone Interviews, Aug. 10-13, 1992.

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Church and Abortion Ban in South Africa

the profundity of the issue for women's lives-has contributed to women's
silence as well.

The church's muteness, combined with the apartheid government's use
of so-called Christian principles, has also contributed to other minority faith
groups' fear to speak out about the ban's medical impact. But for the
church's silence, the apartheid government would not have been able to
command conformity on abortion, as on all fronts, through the claim to
Christian underpinning. For example, a rabbi's statements to me, in an
August 1992 interview, reveal the cowing effect of the state's reliance on
the majority religion. Not wanting to be named, he asked to be quoted as
"one of the pulpit rabbis in the Johannesburg Orthodox community." In
response to my query about whether his synagogue, or the Jewish
community generally, had any position on the abortion ban, he said, "It's
not a Jewish issue." (He later added, "If a Jewish woman needs to make
it happen safely, she does.") When I pointed out that hunger is also not
directly a Jewish issue, but that the South African Jewish community
actively supports hunger programs, he responded:

Well, abortion doesn't thrust itself in your face the way hunger
does. It's a thin line: We can address hunger on socio-
economic grounds; abortion would have to be political. Jewish
moral consciousness rings loud, but we fear engendering anti-
Semitism. We're afraid to speak up.' 27

Similarly, there has been no statement and no action from the Muslim
community,"' the Hindu community,'29 or any other faith group, as far
as my research indicated. I" The church's response to illegal abortion
makes clear that, no matter how prevalent a phenomenon is, it won't thrust
itself in your face if you don't want to see it. The rabbi's comments
indicate another source of blindness and muteness on abortion in South
Africa: non-Christians' fear of engendering hostility in the Christian
majority.

1_7 Telephone Interview, Aug. 11, 1992.
28 Interview with Fatima Hajaij, Welfare Officer, Central Islamic Trust, in

Johannesburg, S. Afr. (Aug. 6, 1992) ("Islam regards abortion as taking life, and so
permits it only if the woman's health is at risk. We haven't discussed the fact that
Islamic women with health risks don't get legal abortions. This is because the family
is a sacred unit, and we don't have forums. Justice is very important to us-it is a
cornerstone of Islam-so we are very vocal about some issues. But we are only
600,000 in South Africa, and we just haven't gotten around to discussing abortion and
women's health.").

29 Interview with Yasmin Sooka, Vice-Chair of the World Conference on Religion
and Peace and Human Rights Attorney, in Johannesburg, S. Afr. (Aug. 12, 1992).

"3 I did not contact any organizations of South African indigenous faiths, in large
part because they tend to have non-institutional operations.

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Columbia Journal of Gender and Law

When Christian denominations have broken their silence on the ban,
they have, except for the Catholic Church,13" ' commendably referred to
the number of illegal abortions; however, they have prioritized other
theological concerns over women's health. For example, the Anglican
Church-so important to the anti-apartheid movement-set up a commission
on abortion which issued an official statement in 1977. In it, the
Commission answered the question "Should the law permit abortion simply
on request?" It concluded: "The Commission would be unhappy about this.
• . . The Commission would prefer other approaches to be made to reduce
the problem of illegal abortions .. " 1,I32 Seventeen years and five
million illegal abortions later, the church has evidently developed no such
"other approaches," and has made no other official statement on the Act or
on what the law ought to be in the New South Africa.'33

In another example, the latest word from the Presbyterian Church of
Southern Africa comes from an ad hoc committee formed in 1982, which
made interim and final reports in the Church's Papers for General Assembly
1983 and 1984. The committee observed that "[o]ne shudders to think of
the illegal back-street methods .... Not a few women have lost their lives
this way." It nonetheless concluded:

The Church must make its voice hear [sic] and proclaim that:

v. We would not like. . . [the Act] to become any more
permissive.

vi. We stand totally against any attempt to legalize abortion
on demand ....

'i" Although it generally has a much more liberationist tone in South Africa than
in the United States, the South African Catholic Church's position on the abortion ban
is unequivocal and makes no mention of the Act's medical impact on women or of the
number of illegal abortions that take place in South Africa. Southern African Catholic
Bishops' Conference, Statement on the Liberalisation of Abortion Legislation (1990).
This pamphlet also describes both an organized letter drive to respond to the
government's 1990 call for public comment on the Act and plans for the SACBC to
testify in Parliament about the Act. Id. at 3-4.

132 Church of the Province of South Africa, Summary of Report of CPSA
Commission on Abortion 5 (1977).

"' Archbishop Tutu, to his credit, has spoken out in favor of the availability of
contraceptives and of abortion in cases of rape, incest, and medical or psychological
threat to the woman. He has rejected "abortion as a method of family planning," which
presumably means abortion on request. He made these comments in relation to the
U.N. population conference in Cairo, and did not refer to the law in South Africa.
Population: Archbishop Tutu Supports Abortion, with Conditions, Inter Press Service,
Aug. 31, 1994, available in LEXIS, Nexis Library, CURNWS file.

134 Presbyterian Church of Southern Africa, Papers for General Assembly 83-84
(1983).

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Church and Abortion Ban in South Africa

The committee also felt it necessary to point out that showing compassion
to women who are considering or who have undergone abortion "[d]oes not
mean condoning or encouraging . . . sexual irresponsibility. '135

Women's health merited a shudder, but was evidently outweighed by more
important concerns.

Moreover, insofar as certain denominations and congregations have
acted, they have opposed any liberalization of the ban. For example, in
1990, Dr. Rina Venter, who was then Minister of National Health and
Population Development, solicited written input from the public on whether
or not the Act should be less restrictive. She then claimed that the
government had received "letters from 48,846 people, 99% of whom were
opposed to any reform."' 36  At first glance, the disparity between the
purported 1% of responses that called for liberalization and the huge
percentage of South African women who have undergone illegal abortion
is surprising. Two factors explain the disparity. First, in reality, Dr.
Venter had received only 1,876 letters; the other 47,000 responses were
signatures on 311 petitions, most of them from churches and church
organizations. 137 Nevertheless, Dr. Venter made the unverifiable claim
that "all major churches" responded.'38 Second, Dr. Venter made the call
for public comment via newspapers, 39 which offers another illustration
of the complex, interrelated levels on which apartheid functioned: Since
76% of the total population is African, and 78% of the African population
is illiterate," it is safe to say that the health minister's call did not reach
the ears of those who suffer most under the ban.

Indeed, fear of jeopardizing church support for the anti-apartheid
movement was part of what motivated a retreat by those who supported
liberalization of the ban. At least until 1991, the African National Congress
Women's League took a strong position in favor of abortion on request. 4 '
The League drew back from that position in 1992, in part because of
religious opposition: "Feminists and a handful of gender-sensitive males
battled with moral and religious objectors . . . . But to no avail."'.

135 Id. at 64.
136 Race Relations Survey 1991/92, supra note 59, at 123.

... Pippa Green, The Cosmopolitan Survey on Abortion, Cosmopolitan (S. Afr.),
Jan. 1992, at 80, 81. See also Hansson & Russell, supra note 44, at 502.

38 Dr. Venter's written response to questions of Pippa Green, Cosmopolitan (S.
Afr.) (on file with author).

139 Id.
"4 Race Relations Survey 1993/94, supra note 5, at 84; Race Relations Survey

1991/92, supra note 59, at 213.
'4' Submissions on the Abortion Act-An Exercise in Futility, ARAG Newsletter

(Abortion Reform Action Group, Natal, S. Afr.), Sept. 1991, at 1.
142 Portia Maurice, ANC Sidesteps the Abortion Debate, Weekly Mail

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Columbia Journal of Gender and Law

After that, and even during constitutional negotiations, the League adopted
an exceedingly conciliatory posture: "[M]ore discussion and debate [would
be] needed before the ANC could adopt a policy on abortion. 143

Admittedly, the League made great efforts in educating people about the
ban as part of male domination and about the morbidity that results from
the large number of illegal, unsafe abortions.'" In so doing, however,
the League was fighting precisely the silence the church has had such a
strong hand in maintaining. Even toward the end of 1993, the ANC still
had no position on abortion per se.14

1 Much, of course, has changed with
the momentous events of April 1994.

CONCLUSION

[The Kairos] is a dangerous time because, if this opportunity is
missed, and allowed to pass by, the loss for the Church, for the
Gospel and for all people of South Africa will be immeasurable.

-The Kairos Document 4

The first few months of 1995 will be critical for South African
women's health. The new Minister of Health, Nkosazana Zuma, has stated
that she favors reforming the abortion law.' 47 Various groups are now
doing research on the extent of illegal abortion.'48 The new government
supports the proposals in the Reconstruction and Development Programme,
which include: "Every woman must have the right to choose whether or not
to have an early termination of pregnancy according to her own individual
beliefs."'1' 9 Those who support reform have actually forestalled debate

(Johannesburg), June 5-11, 1992, at 25.
' Bringing Abortion Debate into the Open, The Rock: Breaking the Culture of

Silence (African National Congress Women's League, Johannesburg, S. Afr.), Aug.
1992, at 13.

144 See id.
14' Telephone Interview with Anne Vincent, Political-Development Coordinator,

African National Congress Women's League (Aug. 4, 1993).
146 The Kairos Document, supra note 27, at 1.

14' Bill Keller, Cape Town Journal: In Land of Smokers, Mandela Heads
Resistance, N.Y. Times, June 2, 1994, at A4.

'' Telephone Interview with Dr. Helen Rees, Director, Reproductive Health Unit

of Baragwanath Hospital/Soweto and of the Johannesburg City Council, and National
Chairperson, Planned Parenthood Association of South Africa (Sept. 22, 1994).

149 African National Congress, The Reconstruction and Development Programme:

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Church and Abortion Ban in South Africa

both in Parliament and among members of the public until there was a good
alternative law to offer. Recently, a group of doctors and attorneys drafted
such a bill, which they believe reflects the opinion of most South Africans.
It would legalize abortion in the first trimester on request, in the second
trimester on a broad range of bases, and in the third trimester to save the
life of the woman. The first Parliamentary debate on abortion in the New
South Africa will therefore take place in the session that begins in early
1995.'m

For the moment, however, the ban remains in effect. Prosecutions still
occur; sharp objects and harsh chemicals are still frequent tools; women
still die. For the moment, the same "liberation first, women last" mentality
has led to yet more inaction:

Nelson Mandela's government has promised to address
changing the abortion law, but a mountain of other matters have
taken precedence....

Lobbyists are frustrated by the agenda drafted by a Cabinet
made up mostly of men. They say the new democratic
government is more concerned with addressing racial inequalities
than the abortion issue.151

Moreover, it is not at all clear that reform will take place. If it does,
people opposed to legal, safe abortion may well challenge any liberalization
of the ban as violative of the interim constitution's unqualified right to life
clause.' 52 Whatever the outcome, if the reality of women's lives has no
impact on the formation of the new law, the church will be partly
responsible:

Pregnancy and abortion are the lot of women, yet until recent
times their voices have been significantly silent. Male legislators
made the laws on abortion, and male-dominated religions laid
down moral codes about it.

Gender equity and women's participation in decision-
making on abortion are essential. This would happen much
more easily if religious institutions were to promote open and
serious inquiry into abortion and related matters.'

A Policy Framework para. 2.12.6.4 (1994).
IS0 Telephone Interview with Dr. Helen Rees, supra note 148.
151 Judith Matloff, Crowded Agenda Delays Review of S. Africa Abortion Law,

Dallas Morning News, Sept. 19, 1994, at 4A.
"52 Telephone Interview with Dr. Helen Rees, supra note 148. S. Afr. Const. ch.

3, § 9 ("Every person shall have the right to life."). This tactic has been successful in
keeping abortion illegal in other countries. Hansson & Russell, supra note 44, at 505.

... Dot Cleminshaw, Abortion, in Doing Ethics in Context: South African

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Columbia Journal of Gender and Law

How, ultimately, shall we describe the church's blindness to the
suffering that the ban imposes on South African women? One South
African theologian has called it moral turpitude."5 It is in some senses
a horrifying solipsism, except that it is a blindness not to some entity
outside the church, but to a group very much within the church: women.
Whatever its past actions and omissions, the time has come for the church
to realize and act on its accountability to women for its role in keeping
abortion illegal and dangerous. 55 At the very least, the church must
recognize that taking no position is a position, and that any position not
grounded firmly in the reality of women's lives is not only morally
irrelevant,156 but theologically bankrupt: "[U]ntil we come down to earth
and give this idea of God's power in the world some real content in terms
of our experience in South Africa today, it remains little more than an
interesting idea. "157

The grounding in reality must start with the church's recognition of its
complicity in creating silence and blindness around women's lives as shaped
by the abortion ban. As Brigalia Bam, then Deputy General Secretary of
the South African Council of Churches, has pointed out, it is easy for the
church to be blind about abortion, because the government has made it
illegal." 8 It was easy for the apartheid government, in turn, to have "no
official figures" on illegal abortion because the church has set a pattern of
silence, of indifference, of no official statements. The time has come for
the church to end that silence, at least if there is any hope of
"transform[ing] the church from the men's fellowship with a male God,
which it now is, into that healed and restored community of all persons with
their Creator-Spirit-God which it ought to be and once briefly was." '59
The Kairos for the church in South Africa was not resolved with the
holding of elections in April 1994. The time has come, and has almost
passed by.

Perspectives 166, 167, 172 (Charles Villa-Vicencio & John W. de Gruchy eds., 1994).
'5 Interview with Denise Ackermann, supra note 119.

For an elaboration of the concept of the church's accountability to women, see

Harrison, supra note 14, at 10.
156 Id. at 155 ("[Tlhe selective perceptions operative in the historical judgments of

Christian teaching on abortion are skewed, because women's well-being is not perceived
as a central moral issue and women's experience and reality are not understood as
relevant to a moral analysis of abortion.").

's Nolan, supra note 19, at 116.
's8 Interview with Brigalia Barn, Deputy General Secretary of the South African

Council of Churches, in Johannesburg, S. Afr. (Aug. 13, 1992).

'9 Duncan, supra note 39, at 388.

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