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. 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 on Termination of Pregnancy Act 92 of 1996.