It’s harrowing, both physically and emotionally, and neutral, non-judgemental post-op care is in short supply, Janet Smith is told.
Johannesburg - Three women and a Joburg lawyer acting for them pro bono are trying to take on abortion – one of the earliest issues handled by the new Constitutional Court during Nelson Mandela’s presidency.
But they insist they’re not religious fundamentalists or political conservatives.
Instead, pharmacist Debra Linde, medical doctor Shelley Loots and psychologist Roslyn Matthee say they have seen the effects of an abortion system that doesn’t always support patients. And while they are also seeking a balance between the rights of a pregnant woman and a gestating life, their affidavits describe harrowing circumstances in which women and girls are often left without the kind of treatment the Constitutional Court envisaged when the Choice on Termination of Pregnancy Act came into force in early 1997. Lawyer Peter Le Mottee explains.
JS: What is the relationship between the three applicants? How did they find each other in order to make this application?
PLM: The applicants have known each other for some years and they all share a burden for women and children in need.
JS: How did the applicants find you? Have you dealt with other constitutional matters? If so, what are these?
PLM: I only know one of the applicants personally and I was approached to take the matter on as she knew that I shared the applicants’ values. I also agreed to take the matter on a pro bono basis. I have not dealt with other matters in the Constitutional Court so this will be a first for me.
JS: Their affidavits are supportive of women and girls in difficult situations, especially where their social conditions are onerous. There is affecting detail relating to the average women or girls to whom the applicants refer.
PLM: I have been given the following examples and I quote from how it was given to me:
“I have witnessed a string of fearful young woman cold and shivering, sitting in only hospital gowns, waiting before 7am outside the theatre while around them are disapproving nursing sisters, clicking and abrupt with them, scurry to get the theatre ready for the exhausted young doctor unfortunate enough to have his or her turn on the termination list.
“The patients are hurried in by the emotionally drained doctor and with little support from the irate sister, intent on making the process so unbearable that hopefully they won’t come back a second time. Then the moaning and bleeding as the process gets under way with little to no sedation only to be wheeled out into the passage when done and then home. Relieved of one burden to be saddled with another.
“I remember one case well – a 16-year-old girl pregnant for the sixth time, at term, in labour. Her history included a previous mixture of early miscarriages and abortions. I think this girl is a prime case of where a patient fell through the cracks after having had an abortion. It certainly didn’t improve things for her or solve the root of the problem.
“Another case of a 16-year-old brought in by her mother who was weeping in abject fear and guilt as the ultrasound was being performed as she knew what she ‘had to encourage her daughter to do’. The baby was already 17 weeks old.”
JS: The applicants say they do not want abortion to be barred again. They say they are more concerned that the state is not doing enough to assist those who decide to have an abortion. There is a sense that women battle to get the appropriate treatment to which they are entitled under the constitution. This would surely include counselling on a humane level.
PLM: Again, I quote from what one of my clients has written to me: “In not one of the cases I remember, did the father of the baby feature at any time to offer support.
“I have never once heard of, or seen, counselling done post-abortion, and certainly not on a long-term basis. I have never heard of counselling done for girls who are 16 or younger with regard to the aspect of statutory rape.
“Every woman I have spoken to who has had an abortion has been emotionally scarred, some even to the point of crippling guilt, self loathing and depression, and this even years afterwards.”
JS: Remind us of the legal requirement for health professionals when it comes to abortion treatment and counselling. Do they have a choice – and, if not, are there punitive measures if they do not follow legal requirements?
PLM: A medical professional does have the right to refuse to conduct an abortion if it is contrary to his or her moral convictions, but one has an obligation then to refer a patient to a practitioner who will provide the service.
One of my clients has, however, been told by some nursing sisters that they have been instructed to perform abortions even where it is contrary to their value system.
JS: What is the application, and what’s the process?
PLM: Although the usual route to the Constitutional Court is to start in a high court, in this matter, the applicants are asking the court to be granted direct access to it. If the direct access application is refused, then the applicants will need to bring an application in a high court, which may ultimately again lead to the Constitutional Court.
The rationale for the application for direct access is that if the applicants’ argument that gestating life is worthy of being accorded dignity in terms of the constitution is sound, then there cannot be a more urgent matter deserving to be heard by the Constitutional Court.
There is no more helpless form of life in need of protection than gestating life in a mother’s womb.
If the application were to be granted, then Parliament will be obliged to comply with the order and it will usually be given a period of time within which to do so.
JS: Abortion is a most complex subject which, as the affidavits state, requires legal minds to make a normative value judgment. This must be a very difficult thing for a judge to do. What does it mean? Does such a case follow the same procedure as other cases brought before the Court?
PLM: The procedure is the same as other cases brought before the Constitutional Court, but because this is a moral issue, the process that the Constitutional Court justices must go through in their minds before making a decision, is very contentious. It is an ongoing philosophical and jurisprudential debate whether judges are required to, or even can, act only objectively or whether subjective factors come into play as well in coming to a decision.
JS: Why is it that these affidavits are the first of their kind to challenge the meaning of the law around abortion? Indeed, are they? Although the applicants don’t seem to be evangelists but, rather, compassionate professionals, isn’t there a fear that anti-abortion sectors of our society may apply to be amici curiae? Or are these completely different issues – more right-wing anti-abortionists want complete prohibition, usually on religious grounds.
Is anyone who challenges the way in which abortions are carried out, a conservative?
PLM: It will, of course, not be possible to stop reactionaries on both sides from joining as amici curiae, but the affidavits have been drafted in such a way that it should be more difficult to jump on the bandwagon from an evangelical point of view, whether liberal or conservative.
The applicants have tried to frame the issue in simple, but clear and compassionate, terms, and hopefully, this will go some way in limiting both sides of the abortion debate from using the matter to further their own agendas.
To the best of my knowledge, this is the first time this question has been framed in such a manner. A matter was brought to the high court in Pretoria in 1998 dealing with the right to life, but in that matter, part of the reasoning of the judge in dismissing it was that the plaintiff did not make allowances for a balancing act between the rights of the pregnant woman and gestating life.
In this matter, if the declarator is granted, then a balancing act will come into play. The logistics of such a balancing act will still need to be worked out.
An example can be taken from the German Constitutional Court referred to in the application. We believe it will mean that there will be far more responsibility on the state to give pregnant women support whether they choose to have an abortion or not.
JS: Why are the official abortion statistics so hard to come by?
PLM: Of course, these should be readily available. We do not know why they are not. A possible answer is because they are too disturbing.
JS: How do you explain the ideal balance between the rights of the unborn child and the pregnant mother?
PLM: This is a very difficult and complex matter which Parliament in its wisdom will hopefully have to determine. It does not form part of the application.
The state attorney has, however, filed a notice of intention to oppose on behalf of the Minister of Health.
The Star