SOUTH AFRICAN LESSONS LEARNED ON ABORTION LAW REFORM

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SOUTH AFRICAN LESSONS LEARNED ON ABORTION LAW
REFORM

• Charles Ngwena
• Professor
• Department of Constitutional Law
• University of the Free State
• ngwenac.hum_at_ufs.ac.za

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Focus of the presentation three main issues

• How was legal reform of abortion achieved? Who
  were the main players. Who were the advocates and
  the opponents? what were the strategies? What
  were the successes and failures?
• How was the new abortion law implemented? Has
  implementation been a success? What have been the
  main difficulties and what have been the
  responses? What are the challenges ahead?
• What lessons can be learnt from the reform and
  implementation process for developing countries?

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Background to the new law

• Customary law regulation of abortion
• Common law regulation of abortion the Bourne
  case.
• Abortion and Sterilization Act of 1975
• Shortcomings of the 1975 Act
• 1. abortion a privilege
• 2. socio-economic grounds and much less abortion
  on request not provided for
• 3. provision for abortion on maternal and fetal
  health, and unlawful sexual intercourse couched
  in very restrictive language
• 3. onerous certification procedures even for
  rape
• 4. Intrusive notification procedures
• 5. public health consequences unsafe illegal
  abortion (44 000 per year), leading to 33 000
  hysterectomies, and 425 deaths) other estimates
  suggesting as many as 120 000 backstreet
  abortions per year.
• 6. Financial consequences
• The Choice on Termination of Pregnancy Act. CTOPA
  passed on 12 Nov 1996 and came in operation on 1
  Feb 1997

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Reform Process

• The window of opportunity Democratisation of
  South Africa from apartheid to constitutional
  democracy 1990-1994. Prior to this period
  abortion not quite an issue in the public domain.
  However there was support for it from some
  practitioners and the Abortion Reform Action
  Group
• Role of womens organisations
• African National Congress Reconstruction and
  Development Plan
• African National Congress National Health Plan
• Support for liberalisation from womens groups,
  human rights and health groups, NGOs and the
  formation of an alliance Reproductive Rights
  Alliance arguments from a choice/rights
  position and arguments from abortion as a public
  health issue that was supported by evidence
• Opposition from Christian groups and arguments
  from pro-life positions
• Positions of political Parties pro, anti and
  middle positions
• Ad hoc Select Committee on Abortion and
  Sterilisation

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Parliamentary Process

• Recommendation for a CTOPA by the Select
  Committee
• CTOP Bill sponsored by the African National
  Congress. ANC maintained a united front
• Pan African Congress gave the bill unqualified
  support
• The African Christian Democratic Party and the
  Freedom Front adopted fundamentalist pro-life
  positions
• The Democratic Party and the National Party gave
  qualified support. They were opposed to abortion
  on request in the 1st 14 weeks permitting
  midwives to perform abortion dispensing with
  parental consent in abortion on minors
  compelling a practitioner who refuses to perform
  an abortion to refer the woman to another
  practitioner.
• ANC did not allow a free vote some Christian and
  Muslims MPs caught in a dilemma

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The CTOPA underpinning philosophy

• values of human dignity, security of the person,
  non-racialism and non-sexism and advancement of
  human rights and freedoms
• right to make decisions about reproduction and to
  security in and control over their bodies
• women and men have the right to be informed of
  and to have access to safe, effective and
  affordable and acceptable methods of fertility
  regulation
• decision to have children is fundamental to
  womens physical, psychological and social health
• universal access to reproductive health care
  services, includes family planning and
  contraception, termination of pregnancy, as well
  as sexuality education and counselling programmes
  and services
• state has a responsibility to provide
  reproductive health to all, and to provide safe
  conditions under which the right of choice can be
  exercised without fear or harm
• abortion is not a form of population control
• Right of every woman to choose whether to have an
  early safe legal abortion according to her
  individual beliefs
• Repealing restrictive and inaccessible provisions
  of the 1975 Act

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Grounds for abortion

• 1st 12 weeks abortion of request can be
  performed by a m/wife or dr. In 2005 the law
  amended to add a nurse.
• 13th -20th week if a dr in consultation with the
  woman if of the opinion that any of the following
  grounds are satisfied
• -risk of injury to womans physical or mental
  health
• -Substantial risk of severe foetal physical or
  mental abnormality
• -Rape or incest
• -socio-economic circumstances of the woman
• After 20th week if dr in consultation with
  another dr or m/wife is of the opinion that any
  of the following grounds are satisfied
• -danger of womans health
• -severe malformation of foetus
• -risk of injury to foetus

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Basis for abortion under the Constitution

• The right to equality (section 9). Equality
  includes the full and equal enjoyment of all
  rights and freedoms. According to the
  Constitutional Court equality means substantive
  equality
• Right to human dignity (section 10)
• Right to life (section 11)
• Right to bodily and psychological integrity ,
  which includes a right to make a decisions
  concerning reproduction and a right to security
  in and control over their body
• Right to privacy (section 14)
• Right to freedom of religion, belief and opinion
  (section 15)
• Right to health care services, including health
  care services (section 27)

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Facilities and persons who can conduct abortion

• 1996 Act abortion may take place only at
  facility designated by Minister (national) of
  Health
• 2004 Amendment Abortion may take place only at
  facility that has been approved by a Provincial
  Minister of Health. The facility must be in a
  position to provide
• 1. access to medical and nursing staff
• 2. access to an operating theatre
• 3. drugs for intravenous and intramascular
  injection
• 4. emergency resuscitation equipment and access
  to an emergency referral centre
• 5.facilities for clinical observation and
  in-patient care
• 6. appropriate infection control measures
• 7. telephonic means of communication
• 2004 Amendment Approved facilities include a
  24-hour maternity service that complies with the
  requirements 1-7 (above).
• National Minister of Health may approve
  facilities if it is necessary tp achieve the
  objectives of the law.

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Some guidance from the provisions of the CTOPA

• Preamble the constitutional values complemented
• Sec 1 a woman means a female person of any age
• Sec 5 TOP may only take place with the consent
  of the woman save where the woman is severely
  mentally disabled as to be incapable of
  understanding and appreciating the nature and
  consequences of a termination of her pregnancy.
• Sect 5(2) not withstanding any other law or
  common law, no consent other than that of the
  pregnant woman shall be requires for TOP save
  where the woman is severely mentally disabled
• In the case of a pregnant minor, a medical
  practitioner or registered midwife shall advise
  such minor to consult with her parents, guardian,
  family members or friends before TOP provided
  that TOP shall not be denied because such minor
  chooses not to consult them.
• Sec 4 The state shall promote non-mandatory and
  non-directive counselling, before and after TOP.

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Impact of CTOPA in terms of numbers of abortions
1997-2003

• Pre 1997 800-1 200 legal abortions per year
• 1997 26 401
• 1998 39 177
• 1999 46 188
• 2000 49 690
• 2001 57 451
• 2002 58 740
• 2003 70 391
• 1st trimester abortions are 74
• 91.5 were on women over 18 years and 8.5 on
  teenagers

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Is the CTOPA working well? A summary of study of
accessing abortion services in the Free State
province of South Africa 1 The objectives

• To identify barriers to accessing abortions
  services under the CTOPA by teenagers
• To determine the significance and scope of
  conscientious objection in the rendition of
  abortion services in the Free State
• To recommend strategies for overcoming any
  barriers that are identified

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2 The hypothesis

• 1.That the liberalisation of abortion does not
  necessarily translate into access.
• 2. Access means availability, economic access,
  geographical access, cultural/social access.
• Access can be undermined by
• User factors and/or
• Provider/Service factors

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User factors

• Attitudes of partners
• Attitudes of friends
• Attitudes of community
• Distance to facility
• Poverty
• Accommodation at facility
• Knowledge about the law
• Knowledge about location of facility

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Provider/service factors

• Unavailability of staff
• Unskilled or incompetent staff
• Poor staff morale
• Hostility by health workers towards women
  accessing abortion services
• Hostility by health workers towards other workers
  involved in providing abortion services
• Poor or inadequate physical facilities

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3Methodology

• Quantitative and qualitative methods
• Collection and analysis of statistics and policy
• Interviews with the following
• 1. teenagers accessing family planning
  services
• 2. health care providers in a position to refer
  clients to abortion facilities
• 3. teenagers who had accessed abortion services,
  and undergone an abortion
• 4. adult women who had accessed abortion
  services and undergone an abortion
• 5. Policymakers and decision-makers

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4.1 Main findings pregnant teenagers/teenage
mothers

• Only 50 had received sexuality education
• Slightly less than 50 were using a contraceptive
• Waiting hours for family planning services were
  very long
• Services seemed to be youth-friendly, but there
  were no special activities as well as times and
  days for teenagers
• Majority lacked knowledge about location of
  abortion facilities and the law
• Slightly less than 50 said that if they needed
  an abortion they would be afraid to tell their
  parents and they would prefer backstreet abortion
• They were not overwhelmingly in favour of
  abortion and about 50 said parental consent
  should be obtained

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4.2Main findings health care providers in a
position to refer patients to abortion facilities

• Some were ignorant about location of facilities
• Did not always refer patients when consulted and
  others do so for specific reasons rape, social
  problems, poor health of woman
• A third would not provide information at all
• Health workers were fairly knowledgeable about
  the law but some lacked precise knowledge about
  conditions under which abortion may be performed,
  parental consent, and conscientious objection
• There was evidence of negativity toward the law.
  Negative was expressed in opinions about stricter
  application of consent provisions stigmatisation
  of abortion and patients
• Few had attended value clarification workshops.
  Those who had attended value clarification
  workshops were positive about the purpose and
  goals of such workshops

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4.3Main findings Abortion service providers

• Most supported the new law, but some felt that
  the law was too liberal
• The hostility and harassment from colleagues,
  lack of support from families, friends and
  community, repeat abortions caused low morale
• Psychological support for providers was generally
  lacking
• Counselling was generally not well discharged for
  the following reasons
• 1. lack of time
• 2. lack of staff
• 3. lack of space
• 4. clients who indicate that they do not have
  time or are unwilling
• 5. lack of training in counselling
• All providers had been trained on how to perform
  an abortion
• A small cadre of staff provide the service

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4.4Main findings abortion patients

• Only 50 of teenagers had received sexuality
  education. The majority of teenagers and adults
  had been told about contraceptives. Only 2 in 10
  of the minors had been using contraceptives.
  Knowledge about emergency contraceptives was
  generally lacking
• Family planning services were located within half
  an hours reach on foot. However waiting periods
  were long.
• Generally satisfied about family planning
  services
• Most discovered they were pregnant in the 1st
  trimester
• Reasons for abortion 2nd trimester abortion not
  aware of the pregnancy waiting for booking date
  ignorance about location of facility
• More adults than minors put on a waiting list and
  some waited for 10 days or more
• Concern by some patients that they had to return
  so many times to the facility before the abortion
  procedure was complete
• Most travelled to the facility by public
  transport for less than an hour
• Accommodation was not a problem
• 66 were satisfied with the quality of the
  service.
• Some found there was insufficient auditory and
  visual privacy
• Some experienced negativity from health workers
• Adults were more knowledgeable than teenagers
  about the new law. However, the level of
  knowledge was generally low

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Main barriers

• Poor sexuality education
• Services that are not youth-friendly
• Ignorance about the law
• Ignorance about the location of facilities
• Inadequate facilities providing abortion services
• Urban rural divide in provision of facilities
• Overburdened facilities
• Shortage of human resources
• High levels of stress among existing personnel
• Lack of access to second trimester abortion
  services
• Abuse of conscientious objection
• Stigmatisation of abortion

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Priorities

• Provision of sexuality education
• Provision of education about the new law,
  including to health care providers
• Rendering services youth friendly
• Re-introduction of Abortion Values Clarification
  workshops
• Provision of psychological support for abortion
  providers
• Outsourcing and decentralising counselling
  services
• Training counsellors
• Determining why not all designated facilities
  that are designated are providing abortion
  services
• Ensuring adequacy of staff
• Upgrading physical structure of facilities

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Lessons learned

• Decriminalisation/liberalisation is an essential
  tool.
• Womens groups/civil society/health care
  professions can be and ultimately should be
  partners
• Where abortion law is supported by a
  Constitution, the law on a firmer, lasting
  footing. Thus far two attempts to question the
  validity of the new law have failed before he
  courts.
• Abortion is best provided by the public sector
  and should be free and easily accessible in a
  real sense.
• Decentralisation of services is essential.
• The co-operation and willingness of the health
  care workers is crucial for the public sector.
  Abortion services in the public sector are highly
  susceptible to staff shortages.
• Training nurses and midwives to perform medical
  abortions in the 1st trimester is essential.
• The substantial increase in the number of girls
  and women accessing abortion are an important but
  not a complete indicator of success as abortion
  can be rendered without the necessary quality.
• Even with decriminalisation abortion will remain
  stigmatised users and providers of abortion
  services need pyschological support. Teenagers
  are more vulnerable to stigmatisation than
  adults. Youth friendly services (rather than one
  size fits all) are essential.
• Ignorance about the law and location of
  facilities can be real barriers.
• Counselling is vulnerable to neglect
• A sustained increase in the numbers accessing
  abortion can also be symptomatic of the failure
  of reproductive and sexual health services,
  schools, and families to provide sexuality
  education and support.

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Sources

• Engelbrecht MC, Pelser A, Ngwena C Van Rensburg
  HCJ 2000. The operation of the Choice on
  Termination of Pregnancy Act some empirical
  findings. Curationis 23(2) 4-14.
• Engelbrecht MC, Ngwena CG van Rensburg HCJ
  2005. Accessing termination of pregnancy by
  minors in the Free State identifying barriers
  and possible interventions. Bloemfontein Centre
  for Health Systems Research and Development.
• Klugman B Budlender D 2000 (eds). Advocating
  for abortion access eleven country studies. The
  Womens Health Project, School of Public Health,
  University of Witwatersrand Johannesburg.
• Ngwena C 1998. The history and transformation of
  abortion law in South Africa. Acta Academica
  30(3) 32-68.
• Ngwena C 2000. Accessing abortion under the
  Choice on Termination of Pregnancy Act realising
  substantive equality. Journal for Juridical
  Science 25(3) 19-44.
• Ngwena C 2003. Conscientious objection to
  abortion in South Africa delineating the
  parameters. Journal for Juridical Science 28(1)
  1-18.