Choice on Termination of Pregnancy Act Amendment Bill

We begin by reiterating our belief in the inviolability of the right to life. We stress that human life begins at conception, which is not just our belief, but a scientific fact.
We state our opposition to abortion, an intrinsically evil act, which strikes human life at the time of its greatest frailty, when it lacks any means of self-defence. We lament the fact that instead of defending and protecting
this basic and natural right, the law of our country affords no rights to those who are not yet born and allows for their legal killing if they are not wanted by their mothers. We call for the repeal of all laws which allow the killing of innocent unborn human beings.
Notwithstanding these introductory remarks, Human Life International, in reviewing the proposed amendments to our current abortion law have very serious concerns that the amendments proposed by the Government will do violence to women, violate the rights of conscientious objectors and generally lessen Government control and accountability for abortions.
We are concerned that the aim of this amendment bill is to widen access to abortion at all costs, by increasing staff and facilities legally entitled to perform abortions, without taking into account the damage that these amendments will do. These amendments seem to demonstrate a disregard for the human dignity of the women that they are purported to help

First Objection to the proposed Amendments:
Section 1(c) and 1(d) of the Amendment Bill substitutes the term 'registered nurse' for the term 'registered midwife' throughout the document.
By allowing Nurses to perform abortions the Government will certainly increase the numbers of those legally entitled to perform abortions. However they will also necessarily decrease the quality and training of those
performing abortions. Warren Hern, one of the most prolific abortionists, has admitted that  "in medical practice, there are few surgical procedures given so little attention and (are)
so underrated in its potential hazards as abortion.... It is a commonly held view that complications are inevitable".  The immediate physical complications of the abortion procedure include uterine perforation, cervical laceration, haemorrhage, sepsis and death. This is not to mention the long-term physical complications as well as the psychological results of abortion on women. Legal abortion is not a safe and risk free procedure even when carried out by a highly trained medical professional in a sterile medical environment. 
In light of this it seems unlikely that this amendment to downgrade qualifications can be reconciled with the aims stated in the preamble of the principle act: "to provide safe conditions under which the right of choice
can be exercised without fear or harm". Certainly the risk, or
fear, of harm to women would be increased were this amendment to pass. The risk of physical complications increases as the qualifications and training of those who do abortions decreases. Thus abortion becomes even more dangerous for women. We request that this amendment is discarded in the interests of women's safety and also in the interests of the nurses themselves, who will have an unfair burden placed upon them.

Second Objection to the proposed Amendments:

Section 1(b) of the Amendment Bill effectively transfers authority for the designation of abortion facilities from the Minister of Health to a member of the Executive Council of a Province responsible for Health.
This amendment will mean that responsibility for this act will shift from central Government, to a member of the Executive Council of a Province responsible for Health. who may not be medically trained. This will result in varying standards of care. In view of what is at stake we feel that the Government should monitor the impact of abortion on women's health very closely and should maintain their responsibility in overseeing this act at all levels. We feel that a transfer of authority would void responsibility on the part of the Minister of Health.

Third Objection to the proposed Amendments:

Section 2 of the Amendment Bill proposes to replace section 3 of the principal act and a new section 3(3) is inserted allowing health facilities with 24-hour maternity services to be automatically designated as an abortion facility without obtaining approval from Government.
Health workers rights to conscientiously object are already being abused when they are forced to complete abortions which have been
started elsewhere by the use of drugs such as 'Cytotec'.   Staff who conscientiously object to abortion are thus forced to administer to patients who are in urgent need of care because no other staff are available. An amendment to allow all 24-hour maternity units to perform abortions, automatically, without having to obtain approval violates the rights of those staff members who conscientiously object. Only at such facilities where staff are willing and available to perform and assist with abortions 24 hours a day should designation as an approved facility be automatically assigned. 

HLI suggests alternative amendments to the Act that would protect women,
healthcare professionals and the unborn.

First Proposal – concerns parental consent for an abortion of a minor:

Section 5 (2) and (3) of the principal act states that minors do not require parental consent or notification to procure an abortion. This section puts minors at risk because the law allows for evidence of statutory rape or incest to be eradicated and allows those guilty of such offences to pressure young girls to have abortions without informing their parents and thus protect themselves from detection and prosecution. 
This part of the current legislation is inconsistent with other legislation, which governs parental consent for less dangerous medical procedures.
We suggest that section 5 of the principal act be amended so that minors are permitted to undergo the abortion procedure only with the consent and knowledge of their parents or guardians. We argue that this amendment will protect children from sexual exploitation. It will also help prevent maternal death should complications occur.

Second Proposal – concerns counselling as a necessary condition before an abortion decision:
The current law in section 4 states that counselling is promoted, but not mandatory. The act also states that abortion may only take place with the informed consent of the pregnant woman. We believe that the woman should be informed not only of her RIGHTS under the law, but also the risks associated with abortion, the reality of abortion procedures, and the nature of the unborn child. Access to all this information should constitute informed consent. We believe that this information is not directive information; it is simply factual information that should be available to women before they make a choice that will have far reaching effects on their lives. This information will empower women to make choices that are really informed.
The Democratic Nursing Organisation of South Africa reported in their written submission on this Amendment Bill that especially young women are returning for repeat abortions, using abortion as a method of contraception, possibly due to lack of, or insufficient counselling. This contradicts the preamble of the principal act, which states that abortion is not a form of contraception and mandatory counselling is needed to address this contradiction.
We propose therefore an amendment to the principal act which will make unbiased and independent counselling a necessary condition for the procurement of an abortion: 

Third Proposal for the insertion of a formal conscientious objector’s clause:
 Although it was argued in 1996, when the current Choice on Termination of Pregnancy Act was debated, that health professionals receive adequate protection of their rights to conscientiously object through the
Constitution, since the passage of the act there has been much confusion regarding the rights of health professionals to conscientiously object. An explicit clause is needed in the act to protect health workers from abuses.
This clause needs to include all health workers not only those who are called upon to perform the abortion but also those who provide services such as administrative work, cleaning etc.. 
As a Catholic Organisation the protection of the rights of health care workers is extremely important to us.  Roman Catholic law severely
penalises those who give aid in the procurement of an abortion. Therefore, the protection of the right to conscientiously object is essential to Catholic healthcare workers. Any infringement on the constitutional right to freedom of conscience would have serious consequences. It is clear from previous debate around this issue that the Constitution is not sufficient protection for health workers who conscientiously object. If, as argued by the Women's Legal Centre at the oversight hearings in 2000, the right to freedom of conscience by health workers is indeed limited by the Choice on Termination of Pregnancy Act, then it is vital that the law is amended to protect those who object. For
pro-life health workers who know that abortion is the taking of innocent human life, the obligation to refer or provide information regarding abortion is an extremely serious matter and is tantamount to being an
accomplice to murder. In our society based on 'freedom, equality and dignity', the rights of women to procure an abortion have been elevated to unreasonable heights, above the rights of health workers, the rights of fathers, the rights of parents, the rights of the pre-born and ultimately the rights of God.
We therefore propose the following new section be added to the Amendment Bill:

Constitutional Rights of Medical Personnel.
All facilities approved for the termination of a pregnancy shall display, in prominent places, notices reading as follows: "Your Constitutional Right NOT to be involved in termination of pregnancy procedures.
All staff are reminded that it is their constitutional right to refuse to be involved in any way in termination of pregnancy procedures. They are also advised that in terms of the Choice on Termination of Pregnancy Act, 1996 as amended, anyone who threatens, coerces, harasses or discriminates against medical personnel because they refuse to participate in termination of pregnancy procedures, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years".

Fourth Proposal – to protect born alive infants:
We call for an amendment to protect babies who are born alive in failed abortions. These infants are sometimes left to die and they are not treated as other premature babies. If, as our law seems to state, personhood begins when a baby leaves it's Mothers body, then the rights of a person should be applied in a consistent way and should not be bestowed only on wanted babies. Explicit protection needs to be given to these babies who survive abortion and are born alive. We therefore propose that the following new section be added to the Amendment Bill:

"Treatment of a child who survives a termination of pregnancy procedure.
Should a child survive a termination of pregnancy procedure it shall be the duty of the person who carried out the procedure to apply all necessary life-sustaining measures, including the supply of food and water, to the survivor"

Fifth Proposal - to explicitly ban partial birth abortions and cap the gestational age at which abortions can be performed:
 An amendment is needed to create more specific guidelines as to the
gestational age at which a baby's life can be ended in utero. Theoretically our law now allows abortion under certain conditions up to onset of labour. Human Life International calls for an amendment to put a cap on the gestational age at which abortions can take place.   It is inconceivable that a child, because it is handicapped, can be killed even up to the onset of labour. 
In addition, our law theoretically also allows the practice of the grisly procedure of partial Birth Abortion, when the baby is partially delivered and then killed by the insertion of blunt scissors into the base of the skull
and the subsequent sucking out of its brain
whilst the baby's head is still in the birth canal. This procedure is used in late term abortions when the baby is so well developed it becomes dangerous and difficult to dismember it within the womb. The pain felt by babies during this process is intense and we call for an amendment to ban this procedure.
Sixth Proposal – for an amendment to track complications resulting from legal abortions:
Our current law does not require the keeping of any records, or the reporting, of complications resulting from legal abortions.    In the interests of women, we call for an amendment to make such reporting obligatory so that the Government has a record of primary, secondary and tertiary complications that result from legal abortions, as well as a record of maternal deaths. This will help government keep track of the safety of the abortion procedure, keep tighter controls on abortion facilities and prosecute medical staff who is responsible for complications and maternal death through negligent practice. This would protect vulnerable women from exploitation and abuse.

Seventh Proposal to penalise harassment of conscientious objectors and to protect abortion survivors:
Section 6 of the proposed amendments should define offences in terms of the principal act in order to ensure that the rights of conscientious objectors and abortion survivors are protected. We therefore propose that the following be added to subsection 1 of section 6 of the proposed "Choice on Termination of Pregnancy Amendment Bill 2003"
(e) Threatens, harasses, coerces or discriminates against medical personnel who refuse to participate in the termination of a pregnancy because it is against their conscience or religious belief,
(f) Refuses or neglects to administer ordinary life-saving care to a child who has survived a termination of pregnancy procedure,
By the addition, after the phrase "10 years" in the last paragraph of subsection (1) of section 6, of the following…. "provided that in the case of (f) above the offence shall be dealt with by the law applicable to a charge of manslaughter".
Concluding remarks:
Human Life International believes that adopting the amendments mentioned will increase the level of choice for women and health workers and protect children from sexual exploitation.
Human Life International is of the opinion that the problems that the Government are experiencing with the implementation of the Choice on Termination of Pregnancy Act stem from the fact that the majority of South
Africans, before the passage of the act, and now, are opposed to this legislation. Doctors, Midwives, Nurses and Medical students do not want to cooperate with this law and should not be forced to do so in democratic
nation. The problem that the government has encountered implementing this act is evidence of the repugnance felt by this nation towards this legislation 
It is our hope that our Government will come to realise that
abortion is the ultimate injustice to women and to the unborn, and the ultimate violation of human rights. Only when real justice and solidarity is shown towards society's weakest members can we begin to build an authentic civilization of truth and love.

Cape Town, 3 August 2004.