Are the restrictive provisions of sections 2(1)(c) and 5(5)(b) of the Choice on Termination of Pregnancy Act 92 of 1996 unconstitutional?

Abstract

Sections 2(1)(c) and 5(5)(b) of the Choice on Termination of Pregnancy Act 92 of 1996 only allow a termination after the 20th week of gestation on very limited grounds. No provision is made for terminations of pregnancies arising from rape or incest. Therefore women survivors of rape or incest who, for reasons beyond their control, postpone their decisions to terminate until the third trimester will not qualify for a legal abortion unless they fall under the existing grounds in the Choice Act. The provisions of the Choice Act regarding the third trimester are more restrictive than those in section 3(1) of the Abortion and Sterilization Act 2 of 1975. The latter did not adopt a trimester approach and allowed a termination on the grounds of rape or incest at any stage of the pregnancy — subject to certain conditions concerning the verification of the cause of the pregnancy. By excluding rape and incest as grounds for termination of pregnancy in the third trimester the Choice Act imposes an “undue burden” on women who are survivors of rape or incest and their exclusion is unconstitutional.