Conscientious objection to providing abortion services: Is it a right?

In this article Ntlokwana discusses the issue of conscientious objection in relation to the CTOP, and what it means in terms of the Constitution and how it affects health workers. 

Health care workers’ ‘right’ to conscientious objection, to performing termination of pregnancies, is one of the issues that came up frequently during the recent public hearings on the Choice on Termination of Pregnancy (CTOP) Amendment Bill in parliament. The questions that arise are: Can one argue that health care workers should place their duty before their beliefs? Alternatively, can one use one’s beliefs to, in effect, deny women access to health care services? This issue is more complex than it seems at first glance. It seems to ask to what extenta health professional or worker should subordinate his or her moral beliefs to his or her duty to provide access to abortion services.

CTOP Act

The CTOP Act has been hailed as a progressive piece of legislation. The Act was passed in 1996, repealing the previous restrictive Abortion and Sterilization Act No. 2 of 1975, which criminalised abortion in South Africa. The Act is a significant step towards decreasing the number of unsafe terminations of pregnancy, and thereby the high number of women who die preventable deaths.

The CTOP Act is an expression of human rights contained in our Constitution. The law was informed by Section 12(2) of the Constitution, which provides as follows:

“Everyone has the right to bodily and psychological integrity, which includes the right –

To make decisions concerning reproduction; To security in and control over their body…”

This right protects the decision of a woman to terminate a pregnancy. Section 27(1)(a) of the Constitution goes on to provide that everyone has the right to have access to health care services, including reproductive health care, and furthermore provides that no person may be refused emergency medical treatment.

In addition, the rights to equality, dignity, life and privacy are all enshrined in the Bill of Rights, further supporting the right of women to access safe abortions. Therefore, the founding values of the Constitution — dignity, freedom and equality need to be borne in mind when applying and interpreting the provisions of the CTOP Act.

CEDAW

Women’s right to decide whether they want to have children or not – also called reproductive autonomy is not only protected in the Constitution. South Africa has signed and ratified international conventions, most notably the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Article 16(1)(e) of CEDAW provides that women have the right to decide freely and responsibly on the number and spacing of children and to have access to information and education to make informed choices. Article 12 of CEDAW provides that “state parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure… access to health care services, including those related to family planning.” Furthermore, the CEDAW Committee published “General Recommendation 24: Women and Health” in order to elaborate on what is expected of states in the context of Article 12. The Recommendation states that women have the right to be fully informed of options available to them in terms of sexual and reproductive rights. The Recommendation goes on to provide that states should refrain from obstructing women when they pursue health goals. Despite the CTOP being grounded in constitutional rights, there has been an outcry from anti-choice groups and some health workers regarding the health workers’ ‘right’ to conscientious objection. Some health workers believe that their right to object on the basis of their beliefs to performing abortions should be respected.

Conscientious Objection – Rights & Duties

The New Dictionary of Medical Ethics defines conscientious objection as “to object in principle to a legally required or permitted practice.” This would mean that, notwithstanding the legalisation of abortion, a doctor or health worker could on the basis of his/her principles object to perform a legal abortion. The European Code of Medical Ethics expands on this and provides that “it is ethical for a doctor, by reason of his (sic) own beliefs, to refuse to intervene in the process of termination of pregnancy, and to suggest consultation of other doctors.”

The CTOP Act does not mention a right to conscientious objection but does set out duties in terms of how health professionals are expected to act in terms of the legislation. Section 10 of the Choice Act provides that “any person who prevents the lawful termination of pregnancy or obstructs access to a facility for the termination of pregnancy, shall be guilty of an offence and liable on conviction to a fine / imprisonment for a period not exceeding 10 years.” It seems that this section seeks to prevent victimisation and discrimination against health care workers who are willing to perform termination of pregnancy.

The CTOP Act further limits the right to conscientious objection of health care workers in the State’s employ as it stipulates that women must receive counselling. This is further reinforced by the Regulations to the CTOP Act, which sets out that a woman requesting a termination of pregnancy shall be informed:

1. a) That she is entitled to the termination of her pregnancy upon request during the first twelve weeks of the gestation period;

1. b) that under the circumstances determined by the Act, her pregnancy may be terminated from the thirteenth up to and including the twentieth week of the gestation period;

1. c) that only her consent is required for the termina- tion of pregnancy;

1. d) that counselling contemplated in the Act shall be available; and

1. e) of the locality of facilities for the termination of pregnancy.

A health care worker ’s right to conscientious objection is therefore clearly limited by the CTOP Act when considering the obligation to provide access to information, together with the fact that the Act creates an offence if a health care worker prevents a lawful termination of pregnancy or obstructs access to a facility performing termination of pregnancies.

It should, however, be noted that the Act does not set out that a health worker has to perform a TOP and rather frames it in the negative in that a health worker may not prevent access to a termination of pregnancy. Therefore, whilst the right to freedom of conscience may protect the decision of individual health care workers in terms of whether they actually perform a TOP, this does not extend to refusing to provide women with information about TOP, including information concerning available facilities and appropriate referrals.

The right will also not extend to attempts to prevent other health care workers from performing a TOP through victimisation, harassment or discrimination. The right does also not provide protection for health workers in the public sector who seek to impose mandatory waiting periods or provide mandatory directive counselling designed to deter women from accessing abortions.

It is often argued that the right to freedom of conscience is enshrined in the Constitution and that this right includes a decision not to perform a termination of pregnancy. It is important to note in this regard that the right is a right to freedom of conscience, religion, thought or belief and is contained in Section 15 of the Constitution. Taken together, these rights protect the moral autonomy of both groups and individuals.

Importantly, it includes the moral autonomy of women to make decisions to have abortions based on their beliefs and thus protects women’s moral and reproductive autonomy. Not only the right of conscientious objectors is protected. The Choice Act does not coerce anyone to have an abortion and instead protects the choice of women to either have an abortion or not, based on their own personal belief or choice.

Conclusion

In summary, the CTOP Act does not mandate all health workers to perform terminations of pregnancies at all times. It merely limits their participation in a termination of pregnancy to the provision of information.

There must be a proportional relationship between the limitation of the right to freedom of conscience and the purpose. The limitation seeks to ensure that women have access to information about CTOP services and are able to access CTOP services free of barriers. Moreover, the limitation is aimed at ensuring that the individual claims of conscience of health care workers do not violate the rights of other health care workers who are willing to provide the service.

Finally, the right to conscientiously object to performing an abortion can never mean that a health professional may refuse to assist a woman in need of emergency medical treatment when her life is in danger. In this regard, Section 27(3) of the Constitution provides that no one may be refused emergency medical treatment.