Freedom of conscience, termination of pregnancy and the duty to refer and not to prevent or obstruct access to terminati refer and not prevent or obstruct access to termination of pregnancy under the Choice of Termination of Pregnancy Act: A clarification

Abstract

It has been stated in a letter to the Editor that the contention by the present writer that doctors who rely on their constitutional right to freedom of conscience, and who refrain from referring a female patient requesting a termination of pregnancy to another doctor prepared to undertake the procedure, may be seen as ‘preventing’ or ‘obstructing’ a termination of pregnancy is ‘quite unfounded in law’. The statement in the letter is based on the wording of Regulation 9 in terms of the Choice on Termination of Pregnancy Act, which it is said was ignored by the present writer. In this article the statement is tested by considering the relationship between the Constitution, the Choice Act and its Regulations; how the courts interpret statutes; the meaning of the words ‘facility’ and ‘locality of facilities’; and the meaning of the words ‘prevent’ and ‘obstruct’. Thereafter the present writer provides reasons for why – until the courts pronounce finally on the issue – it would be ill-advised for doctors to regard his contentions in respect of the prevention and obstruction of terminations of pregnancy as ‘unfounded in law’.