The Choice on Termination of Pregnancy Act, which extended the range of health practitioners able to conduct abortions, was declared invalid by the Constitutional Court on Thursday on the grounds that Parliament had not sufficiently involved the public in drafting the Bill.
The Traditional Health Practitioners Act, which gave traditional healers the same status as medical doctors, was invalidated for the same reason.
Anti-abortion group Doctors For Life International (DFL), who brought the application directly to the Constitutional Court, welcomed the judgement, calling it a “historic victory”. DFL legal adviser John Smyth said the organisation had applied directly to the Constitutional Court when the legislation was enacted.
Smyth said that the judgement went beyond the group’s expectations of a “rap over the knuckles” by forcing Parliament to enact the statutes afresh.
Justice Sandile Ngcobo, who handed down the judgement, suspended the invalidity of the two Acts for 18 months to allow Parliament sufficient time to remedy the legislative process.
If Parliament fails to do this in the stipulated period, the Bills will be struck down. If this happens, nurses and certain health institutions will no longer be allowed to carry out abortions and traditional healers’ powers to administer traditional remedies would be curtailed.
Handing down the decision, Ngcobo said that “participation by the public in the legislative process provided vitality to the process. It is very important, especially to those who had been previously disempowered, to have this provision in our Constitution.”
The judge also awarded DFL 60% of its legal costs.
Smyth said his organisation was optimistic that the Bills would be “tremendously” changed as a result of public participation.
“We do not want to stress Parliament except to say: ‘Do your jobs properly.’ The principle is that Parliament cannot take short cuts. The judgement shows that everybody, even Parliament, must abide by the law of the highest court in the land.”
Smyth said DFL “disagreed with legislation that makes it easier to conduct abortions until the abuses of the law that are going on are fully dealt with”.
The organisation wanted to supplement the legislation to ensure that doctors gave adequate counselling to women seeking abortions, as well as properly informing them of the risks involved.
“Far too many doctors are leaving it up to nurses to conduct abortions, especially after 12 weeks, which is illegal.”
DA spokesperson on health Gareth Morgan said it was a shameful situation when laws had to come back to Parliament. “The parliamentary health committee requires a more genuine application of its mind, not just approving drafts sent to it by the Minister of Health.”
The DFL also applied for the Sterilisation of Amendment Act and the Dental Technicians Act to be considered unconstitutional, but failed to convince the cout.
Explaining his ruling, Justice Ngcobo said that not enough public interest was generated by the latter Bill when it was first published for public comment. With regard to the Sterilisation Amendment Act, the judge ruled that the Bill had not been enacted when the DFL applied to the court, and he could not, therefore, rule on the issue.