Abstract
In June 2022, both the South African Constitutional Court (CC) and the Supreme Court of the United States of America (SC) pronounced far-reaching decisions, with consequences that extended beyond just the parties involved. In Women’s Legal Centre v President, RSA (WLC), the CC upheld an earlier decision of the Supreme Court of Appeal that declared sections of the Marriage Act and Divorce Act unconstitutional on the grounds that it unfairly discriminates against Muslim women married under sharia law and children born from such marriages. In Dobbs v Jackson (Dobbs), the SC overturned two previous decisions, ruling that it is not the court’s function to determine whether abortions are permissible in the USA. Although the facts and contexts of WLC and Dobbs differ, the rulings share several themes – either directly or indirectly – that were considered in this contribution.
To guide the discussion, we use the Trompie rule, which has been deduced from two quotes by Foucault and the recent reaction on Facebook to Corene De Wet’s discussion on Topsy Smith’s Afrikaans Trompie books in LitNet Akademies. The rule is aimed at critical evaluation rather than mere criticism.
In the WLC judgment, the CC gave the legislature two years to amend the legislation to include Muslim marriages. The court also extended the common-law meaning of “marriage” to include Muslim marriages.
If the decision is considered in the light of the Trompie rule, several features can be highlighted. The first is how the Court referred to previous judgments. The quote from Daniels – that during the apartheid era, judges “displayed remarkable ethnocentric bias and arrogance at the expense of those they perceived different” and “exalted their own and demeaned and excluded everything” – could be questioned. We agree that, given our constitutional order, judgments that unfairly discriminated based on race, gender or status are wrong. However, the way the error is pointed out ought to be tempered with the judicial modesty to which we refer in the discussion.
Secondly, the decision is good news for women in Muslim marriages and the children born from such marriages, and in a country characterised by gender-based violence and patriarchy, it is also good news for every woman. The Court makes it clear that it will not hesitate to protect the rights of women and children, especially considering the unequal distribution of power prevailing in relationships and marriages. Thirdly, the court takes its duty seriously and does not simply accept lower courts’ judgments. The way in which the Court critically considered the issues also deserves mentioning. Four issues stand out: that the court is tasked with thoroughly evaluating and considering each matter; that public policy should be guided by the Constitution and principles such as human dignity and equality; that, from a constitutional point of view, it is fair to give everyone rights and leave the decision whether to use them to the individual; and that women are not second-class citizens.
In Dobbs, the Court had to rule on the legality of the Mississippi Gestational Age Act (MGAA) but broaden the scope to also include abortion rights. These rights were established in Roe v Wade (Roe) and Planned Parenthood of Southeastern Pennsylvania v Casey (Casey). The court delivered a split decision, with justice Alito delivering the majority decision, three judges (Roberts CJ and Thomas and Kavanaugh JJ) concurring, but for different reasons, and three justices (Breyer, Sotomeyer and Kagan) delivering the minority judgement.
The majority decided that Roe and Casey were wrongly decided and that the question of abortion rights does not fall within the court’s pronouncement but should rather be a matter for the legislatures. The majority based its reasoning inter alia on the US Constitution’s silence on abortion rights, the absence of historical abortion rights and the stare decisis principle. It held that the court had “neither the authority nor expertise” to decide on the matter. It also indicated that abortion is a medical rather than a rights matter. In view of its “rational basis”, the court held that the MGAA was valid.
In the concurrent opinions, Roberts CJ indicated that he supported the majority on the facts without the need to overturn Roe and Casey. Thomas J focused on the due-process approach and indicated that all rights created by the approach should be reconsidered. Kavanaugh J agreed with the majority; his conciliatory approach sets him apart from the majority.
The minority focused on the rights of women that were denied by the majority decision. The opinion focused inter alia on equity and women’s rights, that some rights should not be decided upon by the state, the Constitution and stare decisis. It also indicated that the majority judgment endangered other minority rights, especially in view of Thomas J’s concurring judgement in which he expressed his discomfort with the due-process approach. The minority also suggested that the public may get the impression that rulings are determined by “doctrines” and a “number preponderance” – a rather unveiled reference to the three conservative justices who were appointed by ex-president Trump.
After discussing the two decisions, several similarities and differences between the rulings were examined. This includes the task of the two highest courts, women’s rights, judicial modesty, the division of power and the way in which judges should differ from each other.
As stated above, the CC’s decision in WLC is a positive legal development. However, the decision in Dobbs cannot be summed up so simply, especially due to the substantial differences in the presuppositions of the majority – which are based on the function of the SC, the will of the electorate and the separation of powers – and the minority, for whom the constitutional rights of women are paramount.
This discussion, guided by the Trompie rule – aimed at contextual, objective critical evaluation rather than mere criticism – showed that the majority in Dobbs could be guilty of passive structural violence for not wanting to decide on abortion rights. Consistent with the WLC approach, an interim injunction and a referral to the federal legislature, or a compromise, would be fairer. However, as the majority and minority’s different legal-philosophical views differ to such a large extent, a compromise is nearly impossible. Rather, the compromise that could have been read into Roe and Casey – and which would be supported by WLC and the South African Choice on Termination of Pregnancy Act – was instead finally nullified by the majority judgement.
Regarding judicial restraint the conclusion is that the justices in both decisions sought to lay out the law and the constitutions based on their personal preconceptions and contexts. While it is therefore possible to differ, they cannot be reproached for “arbitrary actions, intolerance and unfairness”. What should receive attention, however, is the way in which they disagree, especially since court rulings and academic publications nowadays enjoy a wider readership due to accessibility on the internet and social media.
The Dobbs minority warned that the court would pay a “terrible price” for the decision. For the sake of the citizens of the US, it is hoped that this remains an unfulfilled prophecy. In contrast, WLC is a dream come true for many women and children – and for that, one should be grateful.
Keywords: abortion; bodily integrity; critical evaluation; discrimination; divorce; legal capacity; legislature; marriage; stare decisis; women’s rights