ASAUK 2018

Minister of Health and Others v Treatment Action Campaign and Others (No 2)[1] (TAC) is lauded globally as a case study for progressive constitutionalism and public interest litigation. In South Africa, top advocates[2] and leaders of influential human rights NGOs[3] appear to recommend it as an almost perfect model’ for how to combine litigation and social mobilisation.[4]

At its heart TAC was fundamentally about the lived realities and rights of poor, Black, HIV-positive, pregnant women seeking to demand access to medication to prevent mother-to-child transmission of HIV. Surprisingly, absent from the overwhelming majority of appraisals of TAC is a gendered analysis of pregnancy and reproductive health rights.

Shamim Meer & Cathi Albertyn are alone in the endeavor of casting a feminist lens over the manner in which TAC was litigated.[5] They draw attention to the fact that despite the significant ‘redistributive gains’ made as a result of TAC that the litigation ultimately did little to advance the stigmatised status of poor, Black, HIV positive, pregnant women and women more generally.[6] They correctly conclude that ‘rights struggles … need to ensure that women are recognised as agents and not simply reduced to beneficiaries’ and mothers of children.[7]

The result, they suggest, is ‘key actors failed to prioritise women’s active agency in addressing the AIDS epidemic’.[8] Interestingly, it is some of these ‘key actors’ personally who have often written the story of TAC while promoting it as ‘an almost perfect model’, largely without engaging with gendered critiques.[9]

The absence of gendered analysis is also evident on the face of the Constitutional Court’s judgment in TAC.[10] This despite the fact that the affidavits of poor, black, HIV-positive, pregnant women form the core of the court record and the peripheral (though admittedly scant) presentation of gender based legal arguments by the Treatment Action Campaign. Indeed the voices of the poor, Black, HIV-positive, pregnant women are completely absent[11] from the text of the judgment, as are analyses of women’s reproductive rights.[12]

Elsewhere we,[13] and others,[14] have observed that the Court has consistently continued to ignore gendered aspects of socio-economic rights cases presented to them by poor, Black women even when they are explicitly argued by feminists and from feminist perspectives.

In an attempt to alter this anti-feminist trajectory in the Court’s decision making, drawing on Meer & Albertyn’s analysis, as well as Camilla Pickles' explanation of the relational nature of reproductive freedom,[15] and using a feminist approach to the Constitution we have developed elsewhere,[16] we will attempt to rewrite the TAC judgment from a feminist perspective. Our departure point will be as follows:

1. Centering the voices of poor, Black, HIV positive, pregnant women as communicated through their affidavits.
2. Grounding the state’s constitutional obligations to these women in:
   1. The founding constitutional values of non-sexism (s 1(b)) and the achievement of equality (s 1(a));
   2. The prohibition against unfair discrimination based on gender, sex, pregnancy and HV combined with race and socio-economic status (s 9(3));
   3. Women’s rights to ‘to make decisions concerning reproduction’ and ‘security in and control over their body’ (s 12(2)(a)-b); and
   4. Women’s rights to ‘reproductive health care’ (s 27(1)(a)).
3. An acknowledgment of the adversarial pregnancy environment in which TAC occurred and a de-emphasis on the rights of unborn children in comparison to the rights of living women (relational reproductive freedom).
4. Effective remedies which ensure the continued empowerment and social progress of poor, Black, HIV positive, pregnant women in particular.