The submissions to the Portfolio Committee on Health during these hearings raise questions in relation to conscientious objection, which require legal clarification. The first is the question of how far the right of health workers to "conscientiously object" to performing a TOP extends, and the second, and equally important question relates to the rights of those health workers who are prepared to perform a TOP, but are prevented from doing so by victimisation and discrimination from health workers with conscientious objections. Do these health workers have the right to be free from victimisation and discrimination and to exercise their freedom of conscience to perform TOP’s.

These issues also raise related questions in the area of labour law, especially for the Department of Health – how can their employment practices ensure that TOP services are accessible to all women in South Africa particularly in the area of hiring, promotions and dismissals.

In our submission, I will attempt to answer some of these questions and also to deal with some of the arguments raised during the submissions of Pro Life, Doctors for Life and DENOSA. In doing so, I will consider our constitutional and legislative framework, and comparative models adopted in other countries.

1. THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA

This section of the submission outlines the fundamental rights set out in the Constitution and the limitations of these rights. This analysis provides the basis for the answers to the two questions outlined above.

The right to equality provides that everyone is equal before the law and has right to equal protection and benefit of the law. This right applies to women who wish to access TOP services in terms of the Choice on Termination of Pregnancy Act 92 of 1996(CTOP Act). It provides that all women should have equal benefit of the law, in this case, access to termination services in terms of the CTOP Act.

Section 9(3) provides that the State may not unfairly discriminate directly or indirectly on one or more of the prohibited grounds. Amongst others, these grounds include sex, gender, conscience and religion. The State may not discriminate against health care workers on the basis of their conscience, nor against women on the basis of their conscience and gender.

Section 9(4) prohibits discrimination between persons. This right will be given effect to by the Promotion of Equality and Prevention of Unfair Discrimination Act, which prohibits discrimination between persons in the context of health care. Protected within this right are the rights of health workers not to be discriminated against by other health workers because of their conscientious belief that they should provide termination services. This right also protects women seeking TOP’s from discrimination by health care workers.

This right protects the right of women to bodily and psychological integrity, which includes the right to make decisions concerning reproduction and to security in and control over their body. It protects a decision to terminate a pregnancy and the means to secure a termination.

This right affords protection to the right of health care workers to freedom of conscience in their decision whether to participate in performing TOP’s and also the decisions of women to terminate or not terminate their pregnancy. These rights are however limited by the CTOP Act, as is set out below.

This right affords the freedom to health care workers to receive and impart information and ideas. It has been argued that the rights of health workers to impart information about their beliefs against TOP to other health care workers and women is protected by this right. I will argue below that in fact this right has been limited by provisions of the CTOP Act.

It is in terms of this right that women have the right to access health care services including reproductive health care. The state is compelled to take reasonable measures to ensure progressive realisation of this right. Importantly, no one can be refused emergency medical treatment. Women’s right to access a TOP where their lives or health are in danger is protected under section 27(3). This means that all health care workers cannot refuse to perform a TOP where it is emergency medical treatment and cannot therefore avoid training in the management of TOP’s, particularly incomplete TOP’s.

This section protects women’s rights to access to information that is held by another person and required for the exercise of their rights. This would include information about TOP services. This right is encapsulated in the Promotion of Access to Information Act.

In the context of answering the two questions in relation to conscientious objection, this is probably the most important constitutional provision. Section 36 provides that no right is absolute, that all rights can be limited in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account certain factors which are set out in the Constitution.

Although the right of health workers to freedom of conscience is enshrined in the Constitution and this probably includes decisions to perform a TOP, this right is not absolute. In terms of section 36 of the Constitution, their right to freedom of conscience has been limited in a number of ways by the CTOP Act, a law of general application.

Section 6 of the Act provides that a woman who requests a TOP from a medical practitioner or midwife must be informed of her rights in terms of the Act by the person concerned. According to section 9 of the Regulations to the Act (R 168, published on 31 January 1997) a woman requesting the termination of her pregnancy shall be informed –

1. that she is entitled to the termination of her pregnancy upon request during the first 12 weeks of the gestation period;
2. that under the circumstances determined by section 2(1)(b) of the Act, her pregnancy may be terminated from the 13^th up to and including the 20^th week of the gestation period;
3. that only her consent is required for the termination of her pregnancy;
4. that counselling contemplated in section 4 of the Act shall be available; and
5. of the locality of facilities for the termination of pregnancies

A health worker’s right to freedom of conscience is therefore limited by the Act and the Regulations to the extent that they must provide information which will allow women to exercise their rights in terms of the Act. The prescribed information includes so-called referrals.

Section 10 of the CTOP Act provides that any person who prevents the lawful termination of a pregnancy or obstructs access to a facility for the termination of a pregnancy shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 10 years.

A health worker’s right to freedom of conscience is limited by section 10, in that they may not prevent a TOP or obstruct access to a facility.

The constitutionality of these sections of the CTOP Act has not been challenged in our Courts. However, it is likely that they will withstand constitutional scrutiny if one considers the factors that the court will consider:

1. The importance of the purpose of the limitation: This is significant as its purpose is to give effect to women’s rights to equality, freedom and security of the person, freedom of conscience, access to information and access to reproductive health care services, the court will consider the competing rights of women under this factor.
2. The nature and extent of the limitation: The limitation is not severe, it does not mandate all health workers to perform TOP’s at all times. It merely limits their participation in a TOP to providing information. Section 10 is intended to deter them from preventing other health care workers from performing TOP’s and women from accessing TOP’s
3. The relationship between the limitation and its purpose: there is a proportional relationship between the limitation and its purpose, the limitation seeks to ensure that women have access to information about TOP services, are able to access TOP services free of barriers and that the individual conscience of health care workers do not violate the rights of other health care workers who are will to provide the service.
4. There are not less restrictive means which will achieve the purpose – if health care workers do not have to provide this information, women will not be able to access TOP services and enforce their rights in terms of the Act.

Section 4 of the CTOP Act mandates the State to promote the provision of non-mandatory and non-directive counselling before and after a termination of pregnancy. This provision arguably limits the right to freedom of expression of health care workers in the states’ employ, as it stipulates what form of counselling women who request a TOP shall receive. Health care workers may only counsel in a non-directive manner. The regulations reinforce this in section 7, which sets out what information a woman requires in order to make an informed choice about a TOP.

The right of freedom of expression is also limited by section 10, which makes it an offence to prevent a lawful TOP or to obstruct access to a facility performing TOP’s. Health care workers may not prevent other health care workers from performing TOP’s and may not obstruct access to facilities of women seeking top’s. This section arguably limits their freedom of expression in relation to their views and actions in relation to TOP.

It is arguable that section 10 of the CTOP Act seeks to prevent victimisation and discrimination of health care workers who are willing to perform a TOP. This will be discussed further below in terms of the legislative framework for labour relations and the public service.

The court will consider the factors set out above in the section on the limitation of the right to freedom of conscience in determining whether the limitations on the right to freedom of expression are reasonable and justifiable. For the reasons set out above, it is unlikely that a court will find that these limitations are not reasonable and justifiable in an open and democratic society based on freedom, equality and dignity.

It is likely then that the constitutional right of freedom of conscience may protect the decision of individual health care workers whether to actually perform a TOP. However, it does not extend to refusing to provide women with information about TOP including information concerning available facilities.

The right does not extend to attempts to prevent other health care workers from performing a TOP, through victimisation, harassment or discrimination.

The right does extend to refusing to perform an emergency TOP to save the life or health of the woman concerned.

The right does not provide protection for health workers in the public sector who seek to impose mandatory waiting periods or provide mandatory directive counselling, designed to deter women from having a TOP.

The right to fair labour practices is enshrined in the Constitution. This right includes working in an environment free of unfair discrimination and unfair labour practices.

Where a health care worker is prevented from performing a TOP by management OR co-workers in a health care facility this gives rise to a number of potential claims, which are set out below.

In terms of the Employment Equity Act(EEA Act), no person may unfairly discriminate against a health care worker in any employment policy or practice on one or more grounds including their conscience or belief. As the decision to perform a TOP is protected within freedom of conscience, if health workers are unfairly discriminated against, victimised or harassed because they are willing to perform TOP’s, they have a possible claim for unfair discrimination in terms of the EEA Act. It is unlikely that harassers or victimisers will be able to demonstrate that such discrimination is fair, which is the only defence open to such harassers.

Section 8 of the Occupational Health and Safety Act(OHS Act) creates a general duty of employers to employees

• to maintain as far as reasonably practicable a working environment that is safe and without risk to the health of employees including
• 2(b) taking such steps as maybe reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees
• (d) establishing as far as is reasonably practicable what hazards to the health or safety of persons are attached to any work which is performed..
• (e) provide information and training as necessary to ensure health of employees
• (g) taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used
• (h) enforcing such measures as may be necessary in the interest of health and safety

Section 14 of the OHS Act creates general duties of employees at work:

-Take reasonable care for health and safety of himself and of other persons who may be affected by his acts or omissions;

- As regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with

Section 16 –

Every CEO shall as far as is reasonably practicable ensure that duties of his employer as contemplated in this Act, are properly discharged.

The OHS Act creates a general duty on employers to create a safe and healthy environment for employees at work and upon employees to take reasonable care for the health and safety of herself and other persons who may be affected by his acts or omissions.

It is arguable that the psychological health of employees is affected by employers or employees who victimise them for performing TOP’s and that they have remedies in terms of the OHS Act.

During the hearings and in the press one of the issues that is raised by those who are generally opposed to performing TOP’s, is that government must ensure that services are available by employing enough people who will perform TOP’s. The difficulty that arises is how is the Department of Health achieves this on a limited budget and within the context of victimisation of health care workers who are willing to perform a TOP? Set out below is the legal framework in which appointments occur.

The EE Act provides that no person may unfairly discriminate against an employee in any employment policy or practice on one or more grounds including their conscience or belief. Harassment of an employee is a form of unfair discrimination and prohibited. An employee is defined to include an applicant for employment. In all appointments, promotions and dismissals, employers may not unfairly discriminate against employees.

The EE Act provides two defences to discrimination – the discriminator must either show that

1. the discrimination is fair; or
2. they have distinguished, excluded or preferred a person on the basis of an inherent requirement of a job.

Below I consider how this is applied in two different scenarios.

The Dept of Health seeks to employ a midwife/medical practitioner in a remote area in the Northern Cape Province. Currently there are no TOP services offered and the Department is seeking to employ someone who will be prepared to perform TOP’s. They are faced with two candidates, one who does not have an objection to performing a TOP and another who objects strongly on the basis of her conscience. Is the department justified in not employing the midwife/medical practitioner who refuses to perform TOP’s or does this amount to unfair discrimination on the basis of conscience?

The Department will have to demonstrate either that:

1. the discrimination is fair; or
2. that it is an inherent requirement of the job to perform TOP’s.

On the basis of the facts above, it is likely that the Department will be able to demonstrate that their choice is fair or that in the circumstances, performing a TOP is an inherent requirement of the job. They will argue that they have to provide TOP services in terms of the Act, that there are no services currently available to women in that area and the purpose of the discrimination is to give effect to women’s constitutional rights to access health care services, freedom and security of the person and equality.

The Department of Health seeks to employ a midwife/medical practitioner in a remote area in Gauteng. Currently there are TOP services offered by the facility, and women in Gauteng generally have access to TOP services, but the Department would prefer to employ someone who will be prepared to perform TOP’s. They are faced with two candidates, one who has no objection to performing TOP’S and another who objects strongly on the basis of their conscience. Is the department justified in not employing the midwife/medical practitioner who refuses to perform TOP’s on that basis or does this amount to unfair discrimination on the basis of conscience?

The Department will have to demonstrate either that:

1. the discrimination is fair; or
2. that it is an inherent requirement of the job to perform TOP’s.

On the basis of the facts above, it is unlikely that the Department will be able to demonstrate that their choice is fair or that in the circumstances performing TOP’s is an inherent requirement of the job – based on the fact that there are services currently available to women in the facility.

It is likely that in the context of promotions, the same considerations will be relevant. However, the arguments will differ from case to case, where the Department is selecting a candidate for promotion.

In regard to dismissals, the LRA provides that in cases where a dismissal is based on unfair discrimination – the dismissal is automatically unfair. The employer must demonstrate that

1. the discrimination was fair; or
2. the dismissal may be fair of the reason for the dismissal is based on an inherent requirement of the particular job.

If health care workers seek to prevent other health care workers from performing TOP’s, this may amount to misconduct and provide the basis for disciplinary steps to be taken as well as charges being laid ito the CTOP Act.

Examples have been cited of health workers who will only perform TOP’s where they are sure that the woman concerned was raped or the continued pregnancy poses a risk to the women’s physical health. They will perform TOP’s under certain limited conditions but not elective terminations on the basis of women’s choice.

This approach to health care undermines the foundation of the CTOP Act, namely women’s choice. The need for choice in the CTOP Act was recognised because of many factors including that women do not often control when and where they have sex, that sex is not always consensual and that many women cannot discuss the reasons for terminating their pregnancy with health care workers. It is hope that with value clarification, health workers who are only prepared to perform TOP’s in limited circumstances will be prepared to perform elective TOP’s.

Conscientious objection can have a negative impact on women’s health. If health care information and treatment options are withheld, patients do not receive optimal health care and cannot make informed choices. In some circumstances the effect of a conscientious objection may be to take away the right of individual women to obtain such services, thereby precluding their right to exercise their right to conscience.

Conscientious objectors who refuse to provide women with information may trample upon the principle of medical ethics of informed consent. Patients should always be informed of the risks, benefits and alternatives to treatment. A patient can only make informed decisions if they possess enough information to make a choice.