The Aborting of Freedom of Conscience

by Daniela Ellerbeck
30 August 2019

By Michael Swain, Executive Director of FOR SA

Freedom of conscience and belief is one of the most important human rights granted to every South African citizen by our Constitution, and is a central pillar of any healthy democracy.  However, some who oppose Christian values, in particular, have argued that, while you may be entitled to your personal beliefs, you should not be allowed to live them out and express them publicly. This viewpoint is frequently used to sanction those who exercise their democratic rights, particularly when the views and opinions expressed are in conflict with the increasingly “liberal norms” of society.

Hearing of Dr Jacques De Vos

A case in point is now being argued at a hearing in front of the Health Professions Council of SA (HPCSA) where Dr Jacques de Vos, 32, is facing charges of unprofessional conduct and has been prohibited from practising medicine because he allegedly told a patient more than two years ago that a foetus was a human being. He allegedly likened abortion to killing an unborn human, while working for the gynaecology division during his internship year. 

Dr de Vos’s case, which was due to take place on 27 and 28 August 2019, has been postponed to 3 and 4 October 2019 for the HPCSA to provide De Vos’s legal team with further particulars and documentation regarding the charge against him. FOR SA will continue to closely monitor this matter which has great ramifications for the fundamental right to religious freedom.

The legal arguments

In terms of the law, the Choice on Termination of Pregnancy Act,1996 provides for abortion on demand for a variety of cases up to the 20th week of pregnancy.  In the case in question, the woman was 19 weeks pregnant, so she was legally entitled to request and receive an abortion. 

It is also implicit in this law that, while a doctor cannot be compelled to perform an abortion, he/she must refer the person to someone who will.  However, there is nothing in law which should prevent or preclude a doctor (or anyone else for that matter) from expressing his opinion or belief on the matter. The right to freedom of conscience, thought, belief and opinion is constitutionally guaranteed in section 15 of the Bill of Rights, and is a critical component of every individual’s human dignity, regardless of how unpopular, or politically incorrect, their conscientious belief, opinion or thoughts on a matter may be.

Abortion is at the heart of the liberal agenda, which promotes the unhindered expression of individuality and subjective reality as the ultimate value.  Everything – even life itself – bows before individualism and is re-defined in its dark light.  There is no doubt biologically and scientifically that the only difference in the development of a human being from conception to adulthood, is the passage of time and the fact that the first nine months are spent in what should be the safest place in the world – the womb of the mother. However, it is currently one of the most dangerous, with over a quarter of a million abortions taking place in South Africa every year. Far from recognising the sacred humanity of the baby, the so-called “reproductive health rights” of the mother are paramount, ignoring the fact that there are two lives involved and one will be brutally slaughtered in the process.  To the liberals, abortion is simply another means of contraception.

When Dr de Vos expressed his views that at 19 weeks, there is no medical or scientific doubt that a baby is evidently a human being, he was simply stating the facts as he understood and believed them.  The fact that the law does not recognise and protect this life as human and thus allows (and facilitates) its destruction, bears a remarkable resemblance to the legal justification for slavery, which for many years defined millions of men and women as “non-persons” who could be bought and sold (and even killed) at the whim of their owners.  While Dr de Vos’s views may be deeply offensive and emotionally distressing to the woman seeking an abortion, it does not invalidate them, nor should it make him subject to penal sanction.  The essence of a free and democratic society is the ability for those who live in it, to hold and express views which may well be diametrically opposite.

At the heart of this case is the right to conscientious objection, which is implicit in the constitutional right to freedom of conscience, religion and belief (s 15), as no one should be forced to do something that violates their conscience, religious convictions and beliefs.  It should deeply concern us all that a person can be punished through the loss of the ability to work and earn a livelihood in a chosen profession simply for professing a (scientifically valid) viewpoint.  This is particularly so because many choose a career in medicine as the fulfilment of a vocation, not simply as a means of making money.  They dedicate many years of study and sacrifice, in often far from ideal conditions, because they want to preserve life – not end it.  Yet this most hard-won right is in imminent danger of being fundamentally undermined in South Africa. 

Dangerous trend

We have already seen that the Civil Union Amendment Bill, introduced by the political party COPE in the last Parliament and supported by all political parties except the ACDP, tried to set a dangerous trend, because it aimed to remove State marriage officers’ rights to object, on grounds of conscience, to solemnising same-sex relationships.  It pushed for a “winner takes all” outcome, where LGBT rights trump freedom of religion and conscience, despite the fact that both these rights are contained in the “equality and non-discrimination” clause of the South African Constitution and should, therefore, enjoy equal status and protection from unfair discrimination.

While it remains to be seen whether this Civil Union Amendment Bill will be “revived” and passed into law by the current Parliament, FOR SA warned at the time that since the right to conscientious objection was being removed from magistrates and State-employed marriage officers, what would prevent it from being removed from State-employed health practitioners?  Are we really saying that, as a pre-requisite to a career as a doctor in South Africa, you must be willing to endorse a procedure which many people sincerely believe to be the murder of a human being?  Will such a sincerely held viewpoint be seen as eroding the rights of women to enjoy the pregnancy termination services to which they are currently legally entitled and thus be severely sanctioned?  (Bear in mind that the woman is not being refused an abortion, or being precluding from having one – just the ability to insist that this particular doctor who conscientiously objects, performs it.) This is precisely the same principle that underpinned the argument to remove the conscientious objection clause in the Civil Union Act.  If the outcome of the De Vos hearing and the subsequent legal battles which will no doubt follow, is a chilling “yes!”, then the rights of conscientious objection will die as surely as an aborted baby.Freedom of Religion South Africa (FOR SA) is a non-profit, legal advocacy group dedicated to the protection and promotion of our Constitutional rights to enjoy religious freedom.  For more information, please visit the website or follow the “Freedom of Religion SA” Facebook page.

Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 30 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).

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