How backstreet abortion became mainstream

Many of South Africa’s urban centres have a common and extremely worrying denominator – brightly coloured advertisements urging the public to visit a doctor of dubious origin for services ranging from the reconciliation of relationships, to increasing one’s sexual prowess, to what my local “doctor” advertises as “same-day abortions”. While all of these are worrying in and of themselves, it is to this last service that I wish to speak specifically.

In the face of the rights and privileges guaranteed by the Choice on Termination (CTOP) Act of 1996 (No 92) and its amendment in 2004 (No 38) the existence of these “doctors” seems rather surprising. After all, the Act promotes “reproductive rights and extends freedom of choice by affording every woman the right to choose whether to have an early, safe and legal termination of pregnancy according to her individual beliefs”. Unless the woman is a minor or “severely mentally disabled”, all that is needed for the termination of a pregnancy in the first trimester is her informed consent. Terminations after this date require the consent of a registered medical practitioner but can still be done for a number of reasons ranging from health to economic risks.

Furthermore the Act also requires the service be offered by many of the country’s healthcare facilities and clinics, and (in the amendment) even makes allowance for specifically qualified nurses to perform the procedure in the first trimester, thus aiding the provision of the service. With this in mind one would think the need for these dubious doctors would be minimal, or ideally, completely nonexistent.

This is clearly not the case. While the Act has been lauded as one of the most progressive, liberal and fair in the world, its implementation on the ground has been highly problematic. There have been, for instance, numerous infrastructural, supply and training problems, as well as the issue of a number of healthcare practitioners conscientiously objecting to performing the procedure on moral or religious grounds. All of these problems do not bode well for the substantive implementation of the Act and, one can assume, have severely limited the Act’s successful deployment in local communities.

Equally there are reports that many members of the public do not know that abortions are legally available, are frightened from using the legitimate service for fear of disclosing their pregnancy to the larger public (through, for instance, knowing the local nurses) stigmatisation, or because they cannot afford to stay away from their places of work for the time required to perform and recover from the procedure. In this climate the illegal abortion business continues to thrive even though from the perspective of the CTOP Act it would seem that illegal abortionists would have a hard time offering their services.

Problematically however the police are in effect powerless to make meaningful arrests and curb the spread of these illegal businesses. This is because, on the one hand, the CTOP Act’s punitive measures are effectively retrospective — while it is illegal to conduct an abortion unless one is a registered healthcare practitioner, actually catching these people “in the act” is nigh on impossible. On the other hand stopping the advertising of the illegal clinics is itself very difficult. As one article has documented, the person putting up the adverts will have only the most tenuous of relationships with the illegal practitioner, and the practitioners themselves are often guarded in their operations.

While the police do attempt to arrest illegal abortionists, they can really only do so when they receive a complaint from the public; generally these are only received when something has gone wrong. This is furthermore complicated by the reasons people often go to illegal abortion clinics in the first place — secrecy, anonymity and speed (among others). By reporting the illegal abortionist, the woman who has been wronged may be putting herself in the very position she is attempting to escape, her privacy and vulnerability becoming a talking point for the public court.

As I have written before, there is an ever-widening chasm between procedural rights and substantive justice. The CTOP Act attempts to put the decision to have an abortion back in women’s hands. But this right can only be fully realised in a climate of respect, decency and understanding. Until such time as these conditions are realised at a substantive, lived level, it seems we will continue to see the operation of illegal abortionists in our communities.