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State doctors, freedom of conscience and termination of pregnancy revisited.

To the Editor: May I comment on the article by David McQuoid-Mason relating to freedom of conscience in abortion cases, which appeared in your December 2010 issue? (1)

By failing to refer to the Regulations made under the Principal Act, the writer makes this issue extraordinarily complicated. It is, of course, trite law that regulations are subordinate legislation that have the same force of law as the Act of Parliament from which they emanate. The statutory duties imposed on a practitioner consulted about an abortion are explicitly set out in the Regulations.

Regulation 9 of the Regulations under Choice of Termination of Pregnancy Act 92 of 1996 (gazetted 31 January 1997) reads as follows:

Information concerning the termination of a pregnancy:

A woman requesting the termination of her pregnancy shall be informed--

(a) that she is entitled to the termination of her pregnancy upon request during the first 12 weeks of the gestation period;

(b) that, under the circumstances determined by section 2(1) (b) of the Act, her pregnancy may be terminated from the 13th up to the 20th week of the gestation period;

(c) that only her consent is required for the termination of her pregnancy;

(d) that counselling contemplated in section 4 of the Act shall be available; and

(e) of the locality of facilities for the termination of pregnancies.

Quite clearly, sub-paragraph (e) is designed to amplify, clarify and specify the statutory duty that arises under section 6 of the Principal Act when a woman requests an abortion from a doctor who is not prepared to carry out the procedure personally. Such a duty does NOT include any responsibility to refer to another doctor. It goes no further than a duty to name an alternative hospital or clinic.

I find it extraordinary that so many lawyers as well as practitioners have failed to read this regulation. After extensive and heated debate on this very topic (see Hansard), Parliament decided to specify in its subordinate legislation exactly what the duty amounted to. It follows that David McQuoid-Mason's fascinating and indeed erudite discussion about the relevance of the Limitation Clause in the Constitution and about comparisons with English law, and indeed section 10(c) of the Principal Act, all become otiose.

In the light of Regulation 9(e), there can be no doubt that a court would reject out of hand the suggestion that section 10(c) ('preventing the lawful termination of a pregnancy or obstructing access to a facility') criminalises a doctor who refuses to refer to another doctor; it would choose in favour of the clear and obvious intention of Parliament, namely that the section was designed to criminalise violent behaviour outside clinics intended to prevent patients lawfully entering the facility.

I would respectfully submit that it is most important that those doctors who wish to exercise their constitutional right of conscientious objection should not be intimidated by threats and fears quite unfounded in law.

John J Smyth

Consultant in SA Constitutional Law

Director, Justice Alliance of South Africa

(1.) McQuoid-Mason D. State doctors, freedom of conscience and termination of pregnancy revisited. South African Journal of Bioethics and Law 2010;3(2):75-78.

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Author:Smyth, John J.
Publication:South African Journal of Bioethics and Law
Article Type:Letter to the editor
Geographic Code:6SOUT
Date:Jun 1, 2011
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