Do we need the law to provide for a regular clinical medical procedure?

By Marion Stevens, Director: Sexual and Reproductive Justice Coalition (SRJC)

Abortion has always been legal in South Africa, which may surprise many people. The colonial government introduced Roman Dutch law which allowed abortions to take place. The Abortion and Sterilisation Act Number 2 of 1975 reduced access to abortion for white women, while increasing control over black women’s bodies – all within a Population Control framework. Under this Act, approximately 1000 white women accessed abortion every year, while the number of black women seeking abortions was not even recorded.

Every year, about 429 black women died and thousands more were harmed as a result of back street abortion practices. The law required women to consult two medical practitioners before they could obtain an abortion, but this was expensive and proved to be a barrier to many. If a woman was able to access public services and indicated that she had suicidal thoughts, access to abortion could be granted. In the period of Apartheid, the Immorality Acts (1927, 1950) forbade sexual intercourse between “European” women and black people. White women could claim that they were sexually assaulted in order to obtain access to an abortion. The Choice on Termination of Pregnancy Act of 1996 liberalised access to abortion and was supported politically by the African National Congress (ANC) to redress the disparity that black women suffered as a result of not having access to abortion services.  

Historical context

After 1996, the country set about implementing surgical abortion services with the training of providers such as trained nurses, midwives, and doctors in this. The method of surgical abortion involved mostly manual vacuum aspiration at different gestation periods. This newer technology replaced the outdated surgical invasive technique of dilatation and curettage. At the height of implementation, about 60% of designated abortion facilities were operational and the maternal mortality rate from septic abortions decreased, indicating a direct correlation between abortion access and women’s health.

However, more than 20 years after our law was liberalised, access to abortion services has declined. Only 40% of designated surgical facilities are currently operational, only 7% of health facilities provide abortion care and maternal mortality from septic abortions has risen to 9.6%. The Mexico City Policy, also known as the Global Gag Rule that President Bush re-introduced during the HIV crisis in 2002, led to the disruption of most women’s health organisations in South Africa. The absence of sustained funding led many activists to move into the HIV-treatment sector as the politics of intersectionality was not currency yet. The National Department of Health (NDOH) did not develop clinical guidelines for medical abortion, despite the continuous advocacy of a depleted sexual and reproductive health movement. Even during the Obama years, many in the health movement steered clear of abortion work. The reason often given for this was that they needed a secure career and that it would mean that they were vulnerable when the Republicans came into power again. Following Trump’s election and the further tightening of the Global Gag rule, other donors filled the void and supported a large number of international NGOs to do abortion work. Yet there was little investment in South African NGOs led by women to build movements for sexual and reproductive justice. During this time, the Sexual and Reproductive Justice Coalition (SRJC) was born (2015) and registered as an NPO (2018). The SRJC is a coalition of over 200 members, which signed a statement of intent to address marginalised areas of sexual and reproductive justice. It is gratifying to see other South African NGOs starting to embrace sexual and reproductive justice.

Access to Medicines

In 2018, the National Clinical Abortion Guidelines were developed. The guidelines made provision for abortion access at primary health care level and provided for medical abortions and counselling guidance. They also address ‘Obstruction to Access’ where clinics and health workers have violated a patient-centred approach to provision of care. These guidelines have yet to be adopted by the NDOH and have therefore not been implemented yet.  Of concern is the NDOH’s limited efforts to source generic reproductive health commodities, in particular medical abortion drugs. Cytotec (made by Pfizer) is used off-licence and the generic Misprostol, which is used globally for post-partum haemorrhage, is not registered in South Africa. The decades-old French RU486 Mifepristone is also not registered as a generic medicine in South Africa. A number of groups have tried to register these generic drugs through drug regulatory bodies and alerted officials to this, but nothing has been done to facilitate access to these generic drugs. In 2020, Marie Stopes registered a generic version of these medical abortion drugs, but this has not been launched, nor has the pricing been made available. About four years ago, I alerted the National Department of Health (Drs Anban and Yogan Pillay) and the South African Health Products Regulatory Authority (SAHPRA), led by Dr Helen Rees, about the need for generics to be available. I passed on the WHO recommendation for parallel imports from Zambia which currently have at least three generic options of medical abortion drugs available.  

There is great potential for abortion drugs to be administered via telemedicine following the reform of regulations by the Health Professions Council of South Africa. The SRJC, SECTION27 and the Women’s Legal Centre has written to the NDOH noting this interpretation and the opportunity to enable services while social distancing needs to be practised during consultations due to COVID19. Marie Stopes took advantage of the opportunity and is now providing services via telemedicine. However, these services are not accessible to most women in South Africa due to the cost thereof. We have not yet had a response from the NDOH, but the Gauteng Department of Health has confirmed that it will be working towards telemedicine and improving health services.  

The WHO is promoting telemedicine and has published its guidance for self-managed medical abortion (SMA).

In many countries with restrictive abortion laws, women have been working around the legislation,  enabling access through setting up online services. Women help women is an example – it is a global network – and Mobilising Activists for Medical Abortion (MAMA) is a regional network. The SRJC recently joined the MAMA network and will be learning from regional partners in the provision of counselling and care to women. Medecins Sans Frontieres (MSF) is planning to provide self-managed medical abortion in South Africa as it has already done in other countries. These efforts also talk to the process of demedicalisation of abortion where the locus of control is given back to women under a feminist approach. Current evidence suggests that women can carry out self-managed medical abortions safely and concerns regarding the gestational staging of the pregnancy are addressed through the counselling process. Medical abortion drugs can also treat an ectopic pregnancy before it becomes a medical emergency.

This brings into question whether abortion law has any relevance given current practices. Perhaps it is obsolete. Prof. Joanna Erdman has argued that we should not have abortion laws for this medical procedure as they amount to structural discrimination. Similarly, SRJC member Dr Lucía Berro Pizzarossa, who completed her legal PhD on abortion law in Uruguay and South Africa, concludes that certain models of abortion law, which are seen as liberal, actually fail to comply with human rights. She argues that there should be no criminal or specific law on abortion.

The biggest objectives that abortion advocacy in South Africa now need to work for include:  

  1. The NDOH and SAPHRA to facilitate access to generic abortion drugs (why does Mifepristone cost R2,000 in the private sector when MSF can obtain it for R60?);
  2. The NDOH to adopt the National Clinical Abortion Guidelines; and
  3. The NDOH Health Providers to be enabled to provide telemedicine for abortion.

But the reality is that women will take power into their own hands and look after themselves.  Doctors have held the locus of control for too long. The year 2020 is clearly a time for a new normal and feminists are organising. Watch this space.

Case study

By Nontsikelelo Mpulo

In 2016, a young university student suspected she was pregnant when she started feeling ill in the mornings. She visited a private doctor who confirmed that she was four weeks pregnant. She was attempting to complete her honours year and felt that she was not in a position to bring a child into the world. She decided to terminate the pregnancy.

She visited Sophiatown Clinic but was referred to Rahima Moosa Mother and Child Hospital in the south west of Johannesburg. The nurses at Rahima Moosa told her that they no longer performed terminations and could not help her.

She went to Charlottte Maxeke Hospital where she was told that the facility only conducted surgical terminations and because she was less than 12 weeks pregnant they would not perform the termination and referred her to Hillbrow Clinic in the centre of Johannesburg.

At Hillbrow Clinic, the nurses subjected to an interrogation. They asked why she was engaging in sexual activities when she was so young, why had she not taken precautions and said that if she was old enough to have sex, she was old enough to raise a baby. The young woman felt vilified and persecuted. She explained that she had used a condom but that it had broken. She had also taken the further precaution of taking the morning after pill but it had been four days afterward and so the medicine had not worked.

Nevertheless, the nurses explained the procedure and examined her. They said they only accepted people who were between one and four weeks pregnant. They told her she was more than five weeks pregnant and refused to help her.

Although termination of pregnancy is legal in South Africa and should be available in the public service, it is in practice extremely difficult to obtain. Following the ordeal of trying to obtain a termination in the public service, the young woman opted to go to Marie Stopes, a private provider which charges as much as R2000. As a student, the young woman could not afford the treatment and was forced borrow money from her family. She was able to terminate that pregnancy.

When she discovered that she was pregnant a second time, she did not bother to go through the public service. She found a back street provider at Ghandi Square, in the city centre, who gave her pills to take. She experienced bleeding but the foetus did not come out in its entirety. Fearing for her life boyfriend rushed her to hospital. Once there, the nurses admonished her for going to an unqualified person. On examination, the doctor said that there was little to do but wait for the termination to run its course. She was hospitalised for a few days and then discharged.

After the hospital visit, she went to a private gynaecologist to make sure that she was well and he confirmed that the termination was successful.