Catherine Albertyn, ‘Abortion, Reproductive Rights and the Possibilities of Reproductive Justice in South African Courts’ (2019) U of OxHRH J 88


Women’s ability to control their reproductive destiny and choose to terminate unwanted and unsupported pregnancies is a core measure of their substantive freedom and equality. Arguing for a substantive recognition of reproductive autonomy within integrated and mutually reinforcing reproductive rights, this article reviews developments in international law (CEDAW and CESCR) and national jurisdictions, with a particular emphasis on South Africa. Although there has been significant progress at international level, a clear recognition of the right to abortion on request remains remarkably circumscribed. The article draws on evolving international norms and domestic jurisprudence to identify two approaches to defining reproductive autonomy within a constellation of reproductive rights. The first identifies inclusive, but negative, ideas of reproductive choice that do not dismantle the gender-, race- and class-bound norms, attitudes and structural social and economic barriers that impede women’s reproductive autonomy and abortion choices. The second speaks to reproductive justice, and a relationship between autonomy and equality that enables the normative and practical centring of vulnerable and disadvantaged women, within a commitment to the structural transformation of society. Turning to South Africa, the article suggests that the courts have, at best, adopted an inclusive ‘reproductive choice’ approach, based on extant dignity and (negative) freedom jurisprudence, that secures legal protection, but have not developed a more transformative understanding of reproductive rights as ‘reproductive justice’. To develop this more transformative approach, the article analyses the Treatment Action Campaign’s Constitutional Court victory on treatment for poor, HIV-positive women to reduce perinatal HIV transmission, not because this case addresses reproductive autonomy, but because it erases it. It uses this case as a basis for re-imagining the jurisprudence, within a ‘reproductive choice’ approach (that aligns with current jurisprudence) and a ‘reproductive justice’ approach (that pushes its boundaries). Finally, the article reflects on the politics and possibilities of reproductive rights as transformative tools of reproductive justice in securing better implementation of abortion legislation across all vectors of disadvantage and difference.

Previous Article: Meghan Campbell, ‘Beyond the Courtroom: Accountability for Grave and Systemic Human Rights Abuses’ (2019) U of OxHRH J 55

**Other articles from the U of OxHRH J can be found here and submission guidelines can be found here.**