Tubal sterilisation rates in states that banned, limited, or protected abortion access after Dobbs v Jackson Women’s Health decision, both before and after the decision. Source: Columbia University Irving Medical Center
Surgical sterilisation rates among women increased in the United States after a 2022 Supreme Court ruling (Dobbs vs Jackson Women’s Health) overturned the constitutional right to abortion, found researchers at Columbia University Vagelos College of Physicians and Surgeons. The study was published September 11 in JAMA.
Surgical sterilisation – tying, cutting, or removing the fallopian tubes – is a highly effective but essentially irreversible method of preventing pregnancy.
Before the Supreme Court decision, the rate of surgical sterilisation in the United States had declined from a peak in the mid-1970s as effective reversible contraceptive methods became more accessible.
The study looked at the use of surgical sterilisation before and after the Dobbs decision among roughly 4.8 million women in 36 states and Washington, DC.
In the first month after the ruling, sterilisation rates in all states included in the study increased from stable rates in the prior year and a half.
In the six months after the ruling, surgical sterilizations continued to rise by 3% per month in states where abortion was banned after Dobbs. A similar but not statistically significant trend was seen in states that limited access to abortion after Dobbs; no further increase was seen in states that protected abortion access.
“Our study suggests that the Dobbs ruling and subsequent state laws banning or limiting access to abortion may affect a woman’s choice of contraception,” says Xiao Xu, a health outcomes researcher who led the study. “The findings also warrant attention because tubal sterilisation is an irreversible method of contraception.”
With the US Supreme Court’s overturning the Roe v Wade decision, abortion rights are now up to individual US states. However, while there are no legal implications for the rest of the world, it will undoubtedly have a huge influence on other countries’ abortion campaigning and lawmaking decisions. Future anti-abortion efforts in the US may also impact the country’s funding of reproductive services in regions such as Africa.
Without access to legal, safe abortion, many pregnant people will turn to unsafe methods. According to the World Health Organization, 97% of all unsafe abortions happen in developing countries. Some 4.7–13.2% of maternal deaths are attributable to unsafe abortion.
Although Roe v Wade does not have a legal effect in Africa, it was frequently invoked in abortion. Tunisia liberalised its abortion law just nine months after the Roe v Wade ruling – allowing women to access the service on demand. Additionally, in 1986, Cape Verde allowed for abortion on request prior to 12 weeks gestation which aligns with Roe v Wade holding of the same.
In South Africa, the right to abortion is not directly enshrined in the Constitution, but the 1996 Choice in Termination of Pregnancy Act greatly widened accessibility to safe, legal abortions, causing a 90% drop in abortion mortality from 1994 to 2001. The previous apartheid-era laws and their enforcement were predictably stained by racism: abortion was limited to encourage white population growth while contraceptives were promoted to control the population growth of black and coloured people. Wealthy whites could fly to England for an abortion there if they could not arrange one. The 1996 Act was met with significant opposition on religious grounds, and it is speculated that had the ANC done this with an open vote, it would not have passed with such a wide margin.
Even today, research shows that abortion remains highly stigmatised among South Africans, with 75.4% of people surveyed indicating that it was “always wrong” in case of family poverty, and 52.5% indicating the same for either foetal abnormality or family poverty. Provincial splits are apparent, with Gauteng and Limpopo having a > 1 odds ratio of being against abortion.
The 2003 Maputo Protocol adopted by the African Union requires countries to authorise medical abortions in cases of sexual assault, rape, incest, or where the health of the mother is endangered. This specific provision draws from the 1979 United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), whose clause on access to safe abortion was based on on Roe v Wade. However, 12 AU members have not ratified the protocol, and many of those who did have not fully brought their laws into line. South Africa is only one of six African nations that effectively allow elective abortions. Of these, Mozambique and Benin only fully changed their laws in 2020 and 2021.
Abortion opponents led by the Catholic Church and its affiliates enjoy widespread political and social support in many African countries. In 2020, Bhekisisa investigated African pregnancy crisis centres funded by US anti-abortion groups. These centres actively discourage abortion, exerting pressure on girls and women and are rife with misinformation, such as grossly exaggerating the size and development of the foetus in early stages of pregnancy. One NGO offered training to say that abortion would “turn” women’s partners gay if they got an abortion.
Thus, while the legal outcome of Roe v Wade being overturned will have no bearing on South Africa, it will conceivably embolden anti-abortion groups both domestically and abroad and likely to increase the influence they already exert in the country.
Writing for GroundUp, Rebecca Gore lays out the challenges of access to abortion for women in South Africa’s prisons.
As the legal researcher to Justice Edwin Cameron, head of the Judicial Inspectorate for Correctional Services (JICS), I’ve visited several women’s prisons. A recent encounter with a nurse in a big overcrowded prison was a poignant reminder of the challenges women in prisons experience, especially when it comes to exercising their sexual and reproductive rights.
Cramped in her consulting rooms, the nurse shut the door to talk to me. Outside, weary inmates sighed and waited in line. We discussed how JICS might try to resolve various issues, from mental health to how regularly doctors visit.
On abortions, the nurse’s eyes sparked with alarm. She told me of a perplexing problem she is faced with when an inmate requests an abortion. Is it enough to notify the head of the prison (or area commissioner) – or must she seek their prior approval?
For her, the healthcare policy is unclear. With pressure from her superiors and rumours about another nurse being reprimanded for not obtaining prior approval, she opts for the more constrictive process.
When I raised the issue with the head of the prison, she pointed out a gap in the Correctional Services Act 111 of 1998.
As a result, the prison has developed its own policy. If the inmate is above 18 years
they put their request for an abortion in writing;
the nurse facilitates the arrangements; and
the head of the prison and area commissioner are merely informed (so that they are aware of the inmates’ movements).
The head of the prison assured me that the Department of Correctional Services does not intervene. She said it is important to ensure the woman is not a minor and to have the request in writing as it shields the department from potential litigation.
Distressed by this interaction, I had to dig deeper.
There are no easily accessible statistics on abortions in South African prisons. But we do know that women comprise less than 3% of the entire prison population. Lillian Artz and Britta Rotmann have found that women prisoners are “among the most socially and economically vulnerable members” of our society. Their imprisonment has “obvious deleterious effects on both children and the remaining family members charged with childcare responsibilities.”
The Choice on Termination of Pregnancy Act
The lodestar for all women seeking abortions in South Africa is the Choice on Termination of Pregnancy Act 92 of 1996. The Preamble recognises “the decision to have children is fundamental to a woman’s physical, psychological and social health” and that the state shoulders the duty to provide reproductive healthcare.
The Act provides that a woman can request an abortion during the first 12 weeks of the gestation period without any constraints. A medical practitioner must be consulted from 13 to 20 weeks to identify risks such as an ongoing pregnancy that may “significantly affect the social or economic circumstances of the woman”, and after 20 weeks, when life and injury-threatening risks are present. While a minor must be advised to consult with her loved ones, she cannot be denied an abortion if she chooses not to.
The policies pertaining to women in prisons are markedly different.
The Correctional Services Act is silent on abortions. But the Department’s Regulations (last amended in 2012) provide that the “National Commissioner may approve an abortion at state expense” – though only in particular circumstances. Strikingly, these do not include when a woman requests an abortion during the first 12 weeks. And they do not extend to women seeking abortions on purely socio-economic grounds.
Unsettling questions
Unsettling questions spring to mind: Why can women prisoners not request an abortion during the first 12 weeks? Why are socio-economic grounds for abortion neglected when socio-economic issues are generally more acute behind bars? Most pressing, how can the deeply personal choice of whether to have an abortion be at the discretion of the National Commissioner?
To complicate matters further, the latest B-Orders – detailed rules the department issues – do not mention abortions. Yet, the older set states under “Women’s reproductive health” that the services rendered include “termination of pregnancy”. No further details. However, the department’s “Health Care Policy and Procedures” provide for termination of pregnancy to be “performed at state costs for medical reasons only”. What about the other legitimate reasons that warrant abortions? This is rights-throttling.
To be clear: Women imprisoned in South Africa do not have the same standard of care when it comes to accessing abortions. They have extra obstacles to overcome. And without clearly outlined and implemented policies, there is room for misuse and, worse, abuse.
More concerns crop up: Does the “equivalence of care” principle not extend to the sexual and reproductive healthcare of women prisoners? Have female inmates been overlooked in the fight for reproductive justice?
Laws and reality
The right to a woman’s bodily autonomy is a burning issue across the world. The recent exposure of a draft majority opinion from the US Supreme Court revealed a sharp repudiation of the right to abortion.
Fortunately for us, in democratic South Africa, the right to abortion is not a lightning rod for the political elite.
The Bill of Rights gives everyone the right of access to healthcare services. Critically, this includes reproductive healthcare. And is further buttressed by the right to bodily and psychological integrity, which expressly includes the right to “make decisions concerning reproduction”.
South Africa has ratified international and regional treaties, including the Maputo Protocol, that explicitly entrench the right to abortion.
Yet, there is a disturbing disparity between laws and reality.
Despite these progressive laws, many women still struggle to access safe abortions at state expense. Instead, some find themselves obliged to turn to illegal, informal and often dangerous means. This has awful consequences, in a country with high levels of sexual and gender-based violence coupled with avoidable maternal deaths.
Hurdles to safe and legal abortions, such as lack of information, stigma, judgmental attitudes and mistreatment by healthcare workers, have been identified by Amnesty International.
These barriers lead to the proliferation of illegal and informal abortion providers and have a brutal and often life-imperilling impact on women from marginalised communities. For instance, a sex worker explained that she would opt for a “backdoor” provider. Why? Because for her, privacy has to trump safety. A recent article in GroundUp revealed how poor treatment and stigma have led to more (sometimes botched) illegal abortions among sex workers.
Equivalence of care
When it comes to prisons, we must remember that by and large prisons are designed with men in mind. It is for this reason that the United Nations Bangkok Rules acknowledges that women prisoners “are one of the vulnerable groups that have specific needs and requirements”, including female-centric healthcare needs. The Rules reaffirm the “equivalence of care” principle – those in prison have a right to the same standard of healthcare as the general public.
When it comes to women prisoners’ access to abortions, the reproductive justice framework is crucial. Researchers from the Black Women’s Health Imperative state that reproductive justice encompasses the “social, political and economic inequalities that affect a woman’s ability to access reproductive health care services”.
According to Rachel Roth, abortions are “deeply personal” and “shaped by the larger political, economic and social context of women’s lives.” In the carceral setting, “[e]very dimension of reproductive justice is negatively affected.” In addition, the Prison Policy Initiative observes that in the US context there are “insurmountable barriers” to accessing abortions behind bars and “people behind bars often have very few – if any – choices and autonomy when it comes to their reproductive health and decisions”.
Political will
With political will, prison policies can be changed so that the law extends abortion rights to these women and guards the exercise of these rights.
JICS is committed to working on this.
But, we need to go further.
We need to ensure that women behind bars know their rights through education and awareness campaigns – and that healthcare workers are well-trained and do not deter or stigmatise abortion seekers.
We must establish independent healthcare in prisons, a point recently raised by Justice Cameron. Without independent healthcare, women prisoners’ access to abortions will be limited by the closed-off and security-focused nature of our prisons. My encounter with the nurse would not have been as frank and candid if a correctional official had been present.
South Africa has a long way to go to guarantee all women and girls access to safe, free and legal abortions with respect for their dignity, privacy, health and bodily integrity. In this fierce battle for reproductive justice, we must break the silence and not perpetuate the invisibility of women and girls behind bars.
The US Supreme Court has voted to strike down the landmark Roe v Wade decision which constitutionally protects abortion rights, according to an initial draft majority opinion leaked by news outlet POLITICO. This comes at a time when abortion rights are being challenged in a number of US states, and such a ruling would cause abortion to become immediately illegal in 22 US states.
In 2019, there were 630 000 reported abortions in the US in 2019, according to the US Centers for Disease Control, an 18% decrease compared with 2010. Women in their 20s accounted for 57% of abortions in 2019. Abortions are highest among black American women, with a rate of 27 per 1000 for ages 15–44.
The Roe v Wade decision in 1973 gave women in the US an absolute right to an abortion in the first three months of pregnancy, and limited rights in the second trimester.
In 1992, in Planned Parenthood v Casey, it was ruled that states could not place an “undue burden” on women seeking abortions before a foetus could survive outside the womb, at about 24 weeks.
The draft opinion written by Justice Samuel Alito completely refutes the 1973 decision which guaranteed constitutional protections of abortion rights in the US, and also a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Justice Alito wrote.
“We hold that Roe and Casey must be overruled,” he writes in the document, labelled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
In the past, deliberations on controversial cases have been fluid, with justices occasionally changing their votes as draft opinions circulate. This represents a rare breach of Supreme Court secrecy and tradition around its deliberations. The final, binding decision, is expected to be published in two months. Currently, five Republican appointees including Justice Alito have voted in favour of repealing Roe and Casey, while the three Democrat appointees are dissenting. It is not known how the last member, Chief Justice John Roberts, will vote.
The ruling as it currently stands would end the 49 year old US constitutional protection of abortion rights, instead allowing each US state to restrict or ban abortions outright.
POLITICO notes that public disclosure of a draft decision is unprecedented in the court’s modern history. Some observers had predicted that the conservative majority would have chipped away at abortion rights without overturning it.
The draft shows that the court is seeking to reject Roe’s logic and legal protections. “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Justice Alito wrote, declaring that one Roe’s central tenets, the “viability” distinction between foetuses not capable of surviving outside the uterus and those which can, “makes no sense.”
Justice Alito also described doctors and nurses who terminate pregnancies as “abortionists”, instead of the more neutral term “abortion providers” used by Chief Justice Roberts.
