State doctors, freedom of conscience and termination of pregnancy revisited

Abstract

There is a conflict in the South African Bill of Rights between the rights of women to reproductive health care and to make decisions about their reproductive capacity, and freedom of conscience on the part of the medical profession. State-employed doctors, unlike private practitioners, cannot pick and choose their patients. In emergency cases where there is a risk to the patient’s life or danger of grave illness all doctors have a legal duty to render assistance to eliminate such risk or illness, and the same applies where the risk or danger arises from pregnancy. During an emergency a doctor may only refuse to participate in a termination of pregnancy on grounds of conscience if there is another doctor available to do the procedure. In non-emergency cases doctors wishing to exercise freedom of conscience must refer patients to another doctor who is prepared to terminate the pregnancy – failure to do so may be construed as preventing or obstructing access to termination of pregnancy under the Choice Act. The provisions of the Choice Act dealing with preventing or obstructing terminations of pregnancy, or requiring doctors to give pregnant women information about their rights under the Act, may be construed as infringing their right to freedom of conscience, but are likely to be justified under the limitation provisions of the Constitution. If the English law approach is followed doctors may not use freedom of conscience to refuse to give advice or refer a patient to another doctor because such conduct cannot be construed as participating in an abortion operation.