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04 May 2004 00:00
The case brought against the Marie Stopes Clinic by the Africa Christian Action Group (Acag) is the latest challenge to South Africa’s progressive reproductive rights legislation.
The group had lodged complaints with the Advertising Standards Authority (ASA) against the clinic’s advertisements for safe abortions.
They called for the advertisements to be discontinued on the basis that advertising “safe” and “pain-free” abortions was misleading, untrue and offensive.
They had lost the challenge twice before and the matter was now before the ASA’s Final Appeals Committee.
The allegations ran along the all-too-familiar anti-abortion rhetoric: they said Marie Stopes should never be allowed to advertise abortion as safe and pain-free since it misleads women. The argument was that abortion is always painful and never safe for the foetus concerned.
Furthermore, the risk of possible complications during the procedure and afterwards rendered the advertisement misleading. Acag argued that women who undergo abortion suffer medical and psychological risks of a significant nature.
The Women’s Legal Centre represented the clinic at the appeal hearing and the crux of our argument was that, when distinguishing between safe and unsafe abortions, it is important that we do not lose sight of the reality of backstreet abortion.
When a woman in South Africa has a backstreet abortion or attempts to terminate a pregnancy herself, this could entail having objects such as a coat hanger inserted into the cervix. It could entail drinking detergent, dye or bleach. It often entails bleeding to death. Unsafe abortions, and the deaths and injuries they cause, however, are almost entirely preventable.
In contrast, when performed by a skilled provider under safe conditions and with modern methods, abortion has been recognised by the World Health Organisation as one of the safest medical procedures.
It is within this context that one needs to regard safe and unsafe abortions and the right of Marie Stopes to advertise.
Think of having a tonsillectomy or eye surgery — the fact that some people experience serious complications after the procedure does not detract from the medical standard of safety.
Research by the Alan Guttmacher Institute has found that women who continue their pregnancy to term have at least 10 times the risk of death of those who choose safe abortion.
This does not render pregnancy or child-birth unsafe.
When we see an advert for safe abortion, such an advert must be viewed in a socio-political context. The constitutional right to reproductive autonomy and freedom of expression all come into play when evaluating abortion advertising.
A woman needs to make an informed choice as to whether or not to have an abortion. To do so, she needs information and we have to accept that advertising has an important role to play in the right to freedom of reproductive choices.
Last week the Appeals Committee ruled in favour of Marie Stopes, finding that it was able to substantiate its claims that the procedure was in fact “safe” and “pain-free” based on the internationally accepted medical standard.
It found that “advertising by its nature contains innuendos and ambiguities and as such one cannot apply literal and realistic claims tests absolutely without becoming open to ridicule.
“Further, the committee has to look at the advertisements in the context of the constitutional right to freedom of expression and the right to reproductive autonomy.”
This is a significant victory, as society needs to be informed of the fact that safe abortions are available and can be accessed.
But this does not end the debate. It is also important that we recognise that there are women who cannot afford abortions, who cannot read or write and women who do not have the means to access abortions. How we reach them is still a challenge.
We cannot lose sight of the constant challenges being brought to reproductive rights of women in South Africa.
It is often said that, since the right to choose to have a safe abortion is now legally recognised by the Choice on Termination of Pregnancy Act, the pro-choice lobby has emerged victorious. But we should hesitate to declare victory too early.
We have seen how in other countries, most notably the United States, legalisation has not ended the challenges women face in exercising their right to choose.
Clinics are bombed, protests continue, court challenges abound with attempt after attempt to restrict the right to an abortion on demand.
The hundreds of thousands of protesters who filled the streets of Washington last weekend to re-assert the right to choose and to protest against the anti-abortion policies of US President George W Bush is evidence of the battle still raging within the US.
The fact that this was the first march of its kind in 12 years shows us how battles once fought and “won” may resurface years later.
Germaine Greer wrote about how there seem to be two images of women who have an abortion; cold-hearted bitches who have the operation as easily as having a tooth out, regarding it as just another form of contraception, or victims wracked by depression, guilt and regret.
The truth lies somewhere in between. It’s not an easy decision to make. It’s somewhat more complex than having a tooth out. Yet women do get over it.
What’s important is to realise that information is vital and what women don’t know does hurt them.
If a woman is to be an adult, she cannot also be a person whose life decisions will be made by other people.
Nikki Naylor is an attorney at the Women’s Legal Centre in Cape Town
Read more from Nicolette Naylor
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