Let’s call ‘conscientious objection’ by its name: Obstruction of access to care and abortion in South Africa
Satang Nabaneh Marion Stevens and Lucia Berro Pizzarossa 24th October 2018

South Africa has one of the most liberal laws on abortion and constitutionally recognizes reproductive rights as human rights. However, data shows important difficulties translating the legal norms into effective access to services. One of the key challenges is physicians’ refusal to perform abortions invoking an “ad hoc, unregulated and at times incorrect” conscientious objection. The Department of Health is now spearheading a reform of the abortion guidelines aiming to bring them in line with human rights standards and reframing the refusal as “obstruction of access to care”.

More than 20 years ago, South Africa passed the Choice on Termination of Pregnancy Act (CTOPA), 92 of 1996. The law provides for abortion on request within the first 12 weeks and six days of pregnancy. After the 13th week up to and including the 20th week, the law requires the consultation with one medical practitioner that needs to certify that the continuation of the pregnancy poses a risk to the woman’s physical or mental health; or that there is substantial risk that the fetus would suffer from a severe physical or mental abnormality; or the pregnancy is the result of rape or incest; or the continued pregnancy would significantly affect the social or economic circumstances of the woman. After the 20th week, the procedure requires the consultation with two medical practitioners or one medical practitioner and a registered midwife and is only available in very strict circumstances.

The law was widely celebrated at the time of enactment but enthusiasm for the transformative potential of the CTOP Act has long faded. Today, research reports estimate that 50% of abortions in South Africa continue to occur outside of designated health facilities. The burdensome requirements set by the Act force women to seek abortions outside the law. The Department of Health’s official figures show that only 264 of 505 designated facilities are actually providing the abortions they are supposed to. Consequently, women risk their health, their freedom and their lives to access this basic healthcare service.

Besides the complicated requirements of the CTOPA, the country reports a widespread obstruction to access posed by the (ab)use of the so called right to “conscientious objection”. This is being used in an ‘ad hoc, unregulated and at times incorrect’ manner as a means to oppose abortion on very broad grounds, similar to the civil disobedience reported in Uruguay where healthcare workers refused to comply with the law and used conscientious objection as an all-encompassing opportunity for non-participation in abortion services.

According to the  World Health Organization’s Global Abortion Policies Database, more than 70 jurisdictions have provisions that allow this obstruction in health care. The expert Report by MYSU (Mujer & Salud Uruguay) and the International Women’s Health Coalition shows that the practice is pervasive across the world and that it effectively hinders women’s access not only to abortion services but also to other reproductive healthcare.

This year, the National Department of Health has developed guidelines for the provision of abortion. In these guidelines, the term “conscientious objection” is being regulated as what it actually is: an obstruction to access or an obstruction to care as noted in the CTOPA. Section 10 of the Act notes that it is a crime for anyone to prevent a legal abortion or obstruct access to an abortion facility. The penalty is a fine or imprisonment for up to ten years.

The guidelines state that a practitioner who refuses to provide abortion services based on personal beliefs should refer the client to a colleague or facility that is able to offer such services. The client’s right to information and access to health care services, including abortion, should always be provided for. The guidelines affirm that such refusal should not be to the detriment of the client seeking an abortion. This goes in line with the latest international human rights standards related to conscientious objection—General Comment 22—that demands that States must appropriately regulate this practice to ensure that it does not inhibit anyone’s access to sexual and reproductive health care.

The South African Sexual and Reproductive Justice Coalition welcomes this wording as it centers people requesting abortion services and accessing  reproductive justice.

In 2014, the South African Minister of Health stated that “the right of women to have an abortion should always be fully located and discussed as part of the rights—and the transformation of society—that enable the complete emancipation of women.” As of today, the CTOPA remains an empty promise for women in South Africa. The adoption of this wording not only brings the country’s regulation in line with the existing international human rights standards in this regard but can also foster the necessary cultural change that needs to occur around abortion.

Author profile

Satang Nabaneh is a doctoral candidate and works as a project officer of the Women’s Rights Unit, Centre for Human Rights, University of Pretoria. Satang holds a Master of Laws (LLM) in Human Rights and Democratisation in Africa (University of Pretoria), and Bachelor of Laws (LL.B) from the University of The Gambia

Marion Stevens has an academic background as a midwife, in medical anthropology and in public and development management. She has worked in the area of sexual and reproductive justice for over 30 years. Her work has included conducting participatory research, policy analysis and development and advocacy. She has worked with a range of stakeholders both locally and internationally. She chairs the Sexual and Reproductive Justice Coalition in South Africa.

Lucía Berro Pizzarossa (MJur, oxon) is a doctoral candidate and a research fellow of the Global Health Law Groningen Research Center, University of Groningen, The Netherlands. She is a legal advisor for Mujer y Salud en Uruguay (MYSU), a Women Deliver fellow and a board member of the Centre for Gender Studies, University of Groningen.

Citations

Satang Nabaneh, Marion Stevens & Lucía Berro Pizzarossa ‘Let’s call ‘conscientious objection’ by its name: Obstruction of access to care and abortion in South Africa’  (OxHRH Blog, 24  October 2018), <http://ohrh.law.ox.ac.uk/lets-call-conscientious-objection-by-its-name-obstruction-of-access-to-care-and-abortion-in-south-africa> [date of access].

Comments

  1. Helen says:

    First things first: South Africa has a brilliant law in the Choice of Termination of Pregnancy Act. The terms of the Act are clear, they facilitate on demand abortion in the first trimester and a very low level of harm is required to access from 12 to 20 weeks. It does your cause no good to pretend that the requirements of an Act are “onerous”! There were even examples of minors accessing abortion via their SCHOOL without the parents’ knowledge or consent.
    However, with regard to your main point in conflating “conscientious objection” on the part of medical staff to not be required to take part in scheduled Abortions because it offended against their Beliefs, into the notion that medical staff are Obstructing for not playing an active role in a particular woman getting an elective Abortion, I was surprised you gave no context of how we got to where we are today. For all that you wrote, the name Sister Charles never featured!
    In 2004/5 I received a call from Sister Charles and her Counsel at the Equalities organisation I then ran. I was pro-Choice and had written extensively on the Choice of Termination of Pregnancy Act from the perspective of how it aided women. Sister Charles was a Theatre Nurse with many, many years experience who was also a practicing Christian. She had written to her employer explaining that she was happy to assist with emergency operations that could probably result in the death of a pregnant woman’s foetus, but she could not agree to take part in scheduled elective Abortions because in her Belief this was tantamount to murder. She was disciplined for this stance. Her case went all the way to the Con Court and senior Labour Courts. This is why medical staff have a right to exclude themselves from assisting with Abortions. The policy retains staff members who are expected to deal with a variety of conditions, but does not compel them to assist with Abortions (where they may not give the standard of care we would all want for women, or open them up to disciplinary hearings, etc).
    This is perfect. It is absolutely appropriate that people arguing for Pro-Choice understandings of Abortion Rights see that choice cuts both ways. I am delighted that this is the law.
    What your whole article has done is frame these medical professionals as part of a body of “gatekeepers” because some of them may not direct women towards alternative medical care. Medical care in South Africa is not operated from Speak Easies. Clinics and hospitals function on a Walk-In basis in most places, and there are several superb Teaching University Hospitals that people can approach. There are also many organisations giving advice on access to abortion and other maternity services. In short, the message gets out there (and I know this because I’ve used these services personally). The notion that a woman in South Africa has a single option, and that this first port of call provider has the power to completely shut off access to Abortion is not true. There have always been stories of judgemental clinic staff, or staff that were related to members of the community, and so people were reluctant to access HIV, Abortion, STI etc services. But there have always been more than one option available to patients too.
    There has recently been articles published in Europe relating to the PTSD that those staffing Abattoirs face, with seemingly large numbers of staff having lasting damage from being involved in the killing of animals for the human food chain. So we should be live to the notion that inability to take part in Abortions where staff will see the human form of a foetus reaches beyond those whose religion declares life starts at conception.
    That those who cannot in all conscience assist with elective Abortions, because they ideologically or theologically view the foetus as a separate human life should not be subjected to the derogatory terminology present in this article. A State can operate in a way that balances several divergent needs, in fact, it is the best type of State of all.
    Defining the obstruction of Abortion services as not pointing a patient towards another service provider, and then attempting to criminalise a professional medical person for this is a sledgehammer to crack a nut.
    The Dept should not be looking to alienate and remove its staff, but rather improve its communication channels with patients and give over dedicated space in clinics for Abortion Advocacy groups to promote understanding of the law and services to women. South Africa has a long process requiring even highly skilled foreign nurses to undertake before working in the country and theatre and midwife services must be studied by everyone. Losing experienced staff, or deterring the entry to the profession of enthusiastic people, is every bit as important an aim as ensuring that women receive the Abortion services the law provides them with. “Centring” the patient requesting the Abortion service seems fine in an individual setting, but the Bill of Rights extends beyond them and includes ALL South Africans.
    I hope the Dept rethinks its stance.

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