Women’s rights to access abortion services are not under threat following a recent Constitutional Court ruling that an amendment to the 1996 Choice on Termination of Pregnancy (TOP) Act would be nullified unless Parliament consulted the public in the next 18 months.
There has been some confusion following the court’s ruling with concern that it could be misinterpreted as a challenge on abortion services. This is incorrect.
The Amendment Act sought to expand definitions of who could perform pregnancy terminations and which facilities could do them.
The Amendment Act allows for registered nurses to perform TOPs (midwives are currently performing this service) and for functions performed by the national minister to be decentralized to the MECs, such as the designation of TOP sites.
The substantive provisions of both the Act and the Amendment Act were not challenged by the ruling and were not even before the court.
‘The challenge by Doctors for Life (DFL), an anti-abortion pressure group, related to Parliamentary procedure and the need for consultation only,’ explained Sibongile Ndashe, an attorney with the Women’s Legal Centre in Cape Town.
Ndashe said that the National Council of Provinces (NCOP) was supposed to have held public hearings around the amendment, but had failed to do so, citing time constraints. The court found that this was unreasonable and has given the Parliament 18 months to consult with members of the public.
Should the NCOP still fail to meet the deadline, the 1996 Act will stand as it was passed, the amendment will fall away, but termination services as defined under the 1996 Act will continue to be available.
‘Those will be only changes,’ said Ndashe.
She said it was important to note that ‘pro-lifers’ would want to re-open the whole abortion debate and would want to restrict access to abortions.
‘But it is important to note that the (Constitutional) Court is talking about consultation not a referendum (on whether abortions should be allowed),’ added Ndashe.
She said DFL was attempting to question the counseling currently offered at TOP clinics. ‘One of the problems about the counseling that they are insisting on is that they do not only want counseling that is consistent with informed consent they want to see counseling that borders on scaring tactics at clinics. They want to see a situation where l women are scared to the extent that the only decision that they make is going back home and consideration of adoption. One must keep in mind that they don’t really care about counseling, they are fundamentally anti-abortion more than anything else,’ Ndashe said.
A group of health experts released a statement this week expressing concern that there was confusion amongst health service providers and the general public about the legal standing of abortion services in South Africa.
‘We are concerned about impressions that the judgment was related to the Choice on Termination of Pregnancy Act No. 92 of 1996. The 1996 law still remains intact and is not contested – women’s right to terminate pregnancy stands.
‘The health service has the responsibility to ensure access for such women,’ the group said.
Experts agree that the 1996 Choice in Termination of Pregnancy Act has made a huge contribution to improving women’s health and access to their human rights. Medical Research Council research has shown that abortion related mortality has fallen by 90% since services have become available.