While we Were Sleeping – The Choice on Termination of Pregnancy Amendment Draft Bill as an Act of Indirect Discrimination? Discussion of the Choice on Termination of Pregnancy Amendment Draft Bill [PMB-2017]

Authors Sheena Swemmer

ISSN: 1996-2193
Affiliations: Attorney and Gender Researcher: Centre for Applied Legal Studies, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 107 – 123


This note focuses on certain proposed amendments to the Choice on Termination of Pregnancy Act 92 of 1996 ("the Act") as proposed by MP Dudley in a private member’s bill, the Choice on Termination of Pregnancy Amendment Draft Bill ("the draft Bill"), and argues that these proposed amendments constitute a case of indirect discrimination as set out in section 9(3) of the Constitution and applied in the case of City Council of Pretoria v Walker. In order to support the argument that the proposed amendments are a case of indirect discrimination the importance of the Act is discussed with references to the history of the Act and the rights in the Bill of Rights, which the Act aims to realise. Following this, a brief history of the draft Bill is presented with reference to a similar draft bill being proposed by MP Dudley in 2010. The case of Walker and Harksen v Lane NO and Others is relied upon in order to sketch an appropriate approach to determining whether conduct should be considered as constituting indirect discrimination and three proposed amendments are analysed to determine whether they are instances of indirect discrimination. The three proposed amendments are: the change to the definition of "gestation period", the provision of mandatory counselling, and the provision of ultrasound photographs to be used in order for there to be "informed choice". In finding that the proposed amendments constitute acts of indirect discrimination in terms of the test set out in Harksen, I propose that the remedy for this discriminatory conduct should be the failure of the draft Bill to amend any part of the Act whatsoever. I also conclude by suggesting that a novel approach be taken to discipline political parties and members of parliament who have shown to continuously act in ways that directly or indirectly discriminate against a certain group, such as in this instance the MP Dudley’s continued focus on attempting to limit the reproductive rights of woman.