Women’s Reproductive Rights: A Judicial Rhetoric towards a Privacy Jurisprudence

Abstract

Women’s reproductive rights or abortion decisions are complex and riddled with moral considerations. It is for that reason that women must be permitted to make the decision themselves. This sentiment echoes the notion that women are to be left alone with regard to their reproductive rights decisions. Such decisions will have an impact on their family and professional work commitments. It is the anti-choice position that drains the abortion decision of its moral complexity by insisting that it is always wrong. It is amidst this debacle that this research embarked on a judicial discourse comprising of case law in several jurisdictions to explain the notion of a privacy jurisprudence in order to teach the wider community. A privacy jurisprudence, as adumbrated in this study, engenders certain fundamental constitutional guarantees against governmental control or state regulations, which aim to invade the area of protected freedoms, such as abortion decisions by women and the use of contraceptives. In America, state interference has been detested because it wanted to foil women’s right to privacy, whereas in South Africa, state interference is welcomed in the sense that the state must avail resources in order for women to exercise their right to freedom of decision. Botswana recently encountered an inertia with regard to legal literature on women’s reproductive rights and even a dearth of research in the medical arena on the issue. It is suggested that Botswana follow in the footsteps of South Africa and disentangles herself from her zealous patriarchal stand and elevate women so that the latter can be free to exercise their right to privacy in abortion decision or reproductive rights. The discourse towards a privacy jurisprudence enjoys elaborative discussion in the study and evokes some pointers for jurisdictions worldwide to take recognition.