The South African Constitutional Court and the unborn

Abstract

The South African Constitutional Court has not yet been confronted with having to make a finding on the status of the unborn against the background of the South African Bill of Rights. Expecting that the Constitutional Court will sometime in the future be approached in this regard, this article presents some preparatory foundational insights on what the approach of the said Court should be. In this regard, the law-making function of the judiciary and the importance of an informative and rational approach towards the protection of the unborn in the judicial process are emphasised. A more nuanced approach by the judiciary towards the status of the unborn will provide more sensitivity towards matters which overlap with the practice of religion on the one hand and the protection of the unborn on the other. Examples in this regard are conscientious objections by medical practitioners against partaking in abortions due to their religious beliefs, and the dissemination of ethical or jurisprudential knowledge of the unborn to students in secular institutions of education who, in accordance with their religious beliefs, oppose the termination of the unborn. Religious institutions which oppose abortions will also be obligated by their own tenets to form part of such a judicial process, and this is allowed for by the Constitutional Court of South Africa.