A Reply to Camilla Pickles' “Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests”

Authors

DOI:

https://doi.org/10.17159/1727-3781/2022/v25ia8273

Keywords:

Abortion , right to life , reproductive rights, termination of pregnancy, pro-choice, pro-life

Abstract

Camilla Pickles’ Pregnancy Law in South Africa. Between Reproductive Autonomy and Foetal Interests (Pregnancy Law) aims at providing a less adversarial angle related to the pregnant woman and the unborn within her, by moving away from the pregnant woman as a single entity (including the unborn within her) as well as from viewing the pregnant woman and the unborn within her as two separate entities of distinctive value and separate needs. This applies to four categories addressed by Pregnancy Law, namely foetal personhood, violence against pregnant women that terminates pregnancies, substance abuse during pregnancy, and termination of pregnancy for especially the South African context. Pregnancy Law positions its argument on a relational model that emphasises the context of pregnancy as signifying a connection between the pregnant woman (with rights) and the unborn (with interests) inside of her, the unborn being fully dependent on the pregnant woman’s body. This in turn is blended with what is referred to as a not-one/not-two approach. Bearing this in mind, Pregnancy Law claims to provide a compromise, middle ground and third approach regarding what is perceived to be the extremes of the single-entity and separate-entities approaches. Bearing this in mind, this article comprises a critical appraisal directed at Pregnancy Law’s claims as alluded to in the above with specific focus on the status of the unborn against the background of abortion (which in turn has implications for matters related to foetal personhood, violence against pregnant women that terminates pregnancies and substance abuse during pregnancy).

Downloads

Download data is not yet available.

Metrics

Metrics Loading ...

References

Anderson SL "Criticisms of Liberal/Feminist Views on Abortion" 1987 PAQ 83-96

Baird RM "Abortion, Religious Liberty, and the Spirit of Enlightenment" 1995 J Church & State 753-771

Beckwith FJ and Geisler NL Matters of Life and Death: Calm Answers to Tough Questions About Abortion and Euthanasia (Baker Book House Grand Rapids, Michigan 1991)

Bork RH The Tempting of America. The Political Seduction of the Law (Touchstone New York 1990)

Bradley GV "Life's Dominion: A Review Essay" 2014 Notre Dame L Rev 329-391

Buelow III WE "To Be and Not to Be: Inconsistencies in the Law Regarding the Legal Status of the Unborn Foetus" 1998 Temp L Rev 963-994

Byrn RM "An American Tragedy: The Supreme Court on Abortion" 1973 Fordham L Rev 807-862

Carter SL "Abortion, Absolutism, and Compromise (Book Review of Laurence H Tribe's Abortion: The Clash of Absolutes)" 1991 Yale LJ 2747-2766

Carter SL Civility: Manners, Morals, and the Etiquette of Democracy (Basic Books New York 1998)

De Freitas SA "A Critical Retrospection Regarding the Legality of Abortion in South Africa" 2005 JJS 118-145

Dworkin R Life's Dominion: An Argument About Abortion and Euthanasia (HarperCollins London 1993)

Ely JH "The Wages of Crying Wolf: A Comment on Roe v Wade" 1973 Yale LJ 920-949

Frankowski SJ "United States of America" in Frankowski SJ and Cole GF (eds) Abortion and Protection of the Human Fetus: Legal Problems in a Cross-Cultural Perspective (Martinus Nijhoff Dordrecht 1987) 17-74

George B "State Legislatures Versus the Supreme Court: Abortion Legislation Into the 1990s" in Butler JD and Walbert DF Abortion, Medicine, and the Law 4th ed (Facts on File New York 1992) 3-77

George RP and Lee P "Embryonic Human Persons" 2009 EMBO Reports 301-306

Haley JN "Haunting Shadows from the Rubble of Roe's Right of Privacy" 1974 Suffolk U L Rev 145-184

Hope D "The Hand as Emblem of Human Identity: A Solution to the Abortion Controversy Based on Science and Reason" 2001 U Tol L Rev 205-228

Horan DJ and Balch TJ "Roe v Wade: No Justification in History, Law, or Logic" in Horan DJ, Grant ER and Cunningham PC (eds) Abortion and the Constitution: Reversing Roe v Wade Through the Courts (Georgetown University Press Washington DC 1987) 57-88

Lee P Abortion and Unborn Human Life 2nd ed (The Catholic University of America Press Washington DC 2010)

Lee P and George RP "The Wrong of Abortion" in Cohen AI and Wellman CH (eds) Contemporary Debates in Applied Ethics (Wiley-Blackwell Oxford 2005) 13-26

Manninen BA "The Value of Choice and the Choice to Value: Expanding the Discussion About Fetal Life Within Prochoice Advocacy" 2013 Hypatia 663-683

O'Meara J "Abortion: The Court Decides a Non-Case" 1974 Sup Ct Rev 337-360

Nedelsky J "Reconceiving Autonomy: Sources, Thoughts and Responsibilities" 1989 Yale J L & Feminism 7-36

Nedelsky J "Property in Potential Life? A Relational Approach to Choosing Legal Categories" 1993 CJLJ 343-365

Nedelsky J Law's Relations: A Relational Theory of Self, Autonomy, and Law (Oxford University Press Oxford 2013)

Ngwena C "The History and Transformation of Abortion Law in South Africa" 1998 Acta Academica 32-68

Ngwena C "Accessing Abortion Services Under the Choice on Termination of Pregnancy Act: Realising Substantive Equality" 2000 JJS 19-42

Ngwena C "An Appraisal of ABORTION LAWS in Southern Africa from a Reproductive Health Perspective" 2004 JLME 708-717

Paulsen MS "The Worst Constitutional Decision of All Time" 2003 Notre Dame L Rev 995-1044

Perry MJ Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge University Press Cambridge 2007)

Pickles C Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests (Juta Cape Town 2017)

Pillay R "The Beginning of Human Personhood: Is South African Law Outdated?" 2010 Stell LR 230-238

Rescher N Pluralism. Against the Demand for Consensus (Clarendon Press Oxford 1993)

Rice CE "Overruling Roe v Wade: An Analysis of the Proposed Constitutional Amendments" 1973 Boston Coll Int'l & Comp L Rev 307-341

Seymour J Childbirth and the Law (Oxford University Press Oxford 2000)

Smith PA "The Right to Privacy: Roe v Wade Revisited" 1983 The Jurist 289-317

Smolin DM "Aborting Reason and Equality: A Religious Pro-Life Critique of Roe, Casey, and Abortion Rights Rhetoric" 2018 UC Irvine L Rev 673-709

Stacy T "Reconciling Reason and Religion: On Dworkin and Religious Freedom" 1994 Geo Wash L Rev 1-75

Steegmann EP "Of History and Due Process" 1987 Ind LJ 369-399

Van Oosten F "The Choice on Termination of Pregnancy Act: Some Comments" 1999 SALJ 60-76

Witherspoon JS "Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment" 1985 St Mary's LJ 29-77

Case law

Roe v Wade 410 US 113 (1973)

Doe v Bolton 410 US 179 (1973)

Legislation

Choice on Termination of Pregnancy Act 92 of 1996

Published

2022-01-14

How to Cite

de Freitas, S. (2022). A Reply to Camilla Pickles’ “Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests”. Potchefstroom Electronic Law Journal, 25, 1–28. https://doi.org/10.17159/1727-3781/2022/v25ia8273

Issue

Section

Articles