Legal Team – Shadrack Mafutsa, Martus de Wet, Adv Kemp SC, Dr Van Eeden and John Smyth QC,
The Legal Department’s task is to convey the correct perspective in relation to medical ethical issues. This is done by means of involvement in court actions and submissions to Parliament and other forums where such issues are being discussed. Drawing from various legal counsel and international experts on the respective issues/fields, DFL ensures the highest standards of advice to members and society.
For a list of legal actions, past and present please see here
Doctors for Life International is pleased to announce that the Supreme Court of Appeal has dismissed with costs the application of On Digital Media t/a Starsat (previously TopTV), to appeal against the Cape High Court decision setting aside the decision of ICASA authorising the broadcasting of pornography on two of their South African television channels.
Hopefully Doctors for Life will now be allowed to present conclusive scientific neurological evidence that has developed on the destructive effects and addictive nature of pornography on the brain, to ICASA.
Doctors for Life International represents more than 1500 medical doctors and specialists in South Africa and abroad. DFL has commented extensively on these issues and has made submissions to the Constitutional Court and the Law Reform Commission in the past. For more information visit www.dfl.org.za
DFL is represented by Attorneys Steve Schneider and Naomie Marais who instruct Advocates Reg Willis and Albert Mooi.
The following interpretation of the law expresses the views of senior legal council to Doctors For Life International (DFL)…
RELEVANT CONSTITUTION CLAUSES:
Section 15: “Everyone has the right to freedom of conscience, religion, thought, belief and opinion”.
Section 16[b]: “Everyone has the right to freedom of expression which includes freedom to receive or impart information or ideas”.
Section 9: “Everyone is equal before the law and has the right to equal protection and benefit of the law. No person may be unfairly discriminated against directly or indirectly on any one or more grounds including amongst other things religion, conscience and belief”.
The Constitution is the ultimate law of the country and consequently if it would clash with another law, the Constitution would override the other law. These Constitutional Rights entitle you to the following:
To resist in Court any attempt to refuse employment or to discriminate against you or to intimidate you into participating in induced abortion. You have the right to refuse to refer a patient to an Abortionist.
To inform others of your ideas and views about induced abortion. Contrary to what the law says, the Constitution would even allow Health Workers to refuse to furnish any information concerning the rights of an applicant for induced abortion. It is important to take note that the clause in the draft abortion law that forced a Doctor or Nurse, who was unwilling to do an abortion, to refer the Patient to another Doctor/Nurse who would be willing, was scrapped before the bill was voted upon in 1997. (This was done under pressure from all the opposition parties at the time.)
This means that there is currently no legal obligation to refer. According to the Canadian Medical Association, “a Doctor who refers a Patient for a procedure he believes to be wrong is morally just as culpable as the Doctor who performs the procedure”.
You may not be forced to participate in any part of the abortion procedure; this would include anything from directly taking part in the abortion procedure, to making beds and caring for the Patient or even looking at histological specimens in the laboratory.
You may refuse taking part in any part of the administrative process of arranging abortions at all levels of the health system.
You may not be refused work, dismissed or victimised in your work place because of your conscientious beliefs and objections concerning induced abortions.
WHAT THE LAW DOES NOT ALLOW
You may not express your ideas in a threatening or intimidating way, or physically prevent somebody from going for an induced abortion.
If you do not wish to participate in induced abortion in terms of your lawful rights, you should make your viewpoint known as soon as possible to your employer in writing so that substitute staff can be arranged. (Contact DFL for the relevant form and advice.)
OTHER RIGHTS CONCERNING THE ABORTION LAW
You have the right to insist that, in a particular Institution, all the conditions stipulated in the Act be adhered to before induced abortion may be performed.
– Induced abortions can only be carried out in an authorised facility.
According to the regulations of the law, surgical abortion can only be performed in a facility designated by the Minister of Health. In turn, the Minister is only allowed to designate a facility if it complies with specific conditions and requirements. For instance, there must be access to medical and nursing staff that can perform the procedure. A Health Professional with conscientious objection cannot be counted as an accessible staff member. If there are not sufficient pro-abortion staff members at the particular facility, such a facility cannot be designated by the Minister. If a facility had been designated before, and loses its pro-abortion staff members, the Minister can withdraw such a designation after giving 14 days prior notice of such a withdrawal in the Government Gazette.
The age of the unborn child must be determined before the abortion takes place.
Abortion after 12 weeks can only be permitted if the special circumstances of the Act are present.
The woman having the abortion must be fully informed concerning all the consequences regarding having an abortion and must give her consent to it.
Where the woman is a minor, she must be advised to consult with her parents or her family.
Where the woman is mentally disabled or unconscious, additional special conditions apply.
The state must promote the provision of non-mandatory and non-directive counseling.
MISOPROSTOL / MEFIPRISTONE
Misoprostol / Mefipristone has created a peculiar dilemma for health professionals who have a conscientious objection to performing induced abortions. Misoprostol /Mefipristone is often given by another Health Professional who tells the Patient to go to the local hospital’s casualty department once she starts bleeding. At the hospital, pro-life staff are then foreced to attend to the Patient, for example, by doing a D&C. This blurs the line between taking care of Patients suffering from the complications of an induced abortion, and completing the second part of the abortion procedure and thus becoming an accomplice.
What is your duty if, for instance, you work in a casualty department, and a Patient comes in haemorrhaging from Misoprostol / Mefipristone? Your duty is to stabilize the Patient after which you can refer the Patient to a Health Professional who has no conscientious objection to continue to attend to the immediate needs of the Patient.
Also, if the initial receiving and stabilising of these “emergencies” becomes a regular occurrence / part of your routine, you have the right to demand that arrangements be made for pro-abortion staff to be available to receive and stabilize these Patients 24 hours a day, 7 days a week.
WHEN APPLYING FOR A POST
You have the right not to be discriminated against. You can apply to work in any department and if there is more than one applicant, the fact that you do not want to take part in abortion should not in any way count against you, be that an application to work in the casualty department, the department of obstetrics and gynaecology or wherever.
STEPS TO PROTECT YOUR RIGHTS
Step 1: Contact Doctors For Life (DFL) for a form to notify your employers about your convictions and rights.
Step 2: Give one copy to your employer and keep one for yourself.
Step 3: DFL can assist you with legal advice.
POST ABORTION SYNDROME
Participation in abortion has emotionally harmed many people. Post Abortion Syndrome is a very real condition amongst Health Care Professionals involved in abortion and is characterised by depression, nightmares, fits of crying and many other disturbing symptoms. If you have been affected, do not hesitate to contact our pre- and post-abortion 24 hour Careline: 078 879 7484