Abortion posters appearing all over Louis Trichardt, advertising a so-called “legal abortion” are absolutely illegal. Guaranteed

Advocate Gideon Joubert of the School of Law of the University of Venda said that the typical advertisement of a so-called doctor offering affordable, 100% guaranteed, fast, safe and pain-free abortions, is illegal in terms of the Choice of Termination of Pregnancy (TOP) Act, Act 92 of 1996, as well as the Advertising Standards Authority of South Africa (ASA).

Not only is the so-called doctor liable for criminal prosecution, but everyone else who has a part in the procedure as well. “Any person who puts up posters or hands out pamphlets of these abortions or any woman who makes use of these abortions at unregistered facilities is an accomplice and liable to be criminally prosecuted,” said Joubert.

Adv Joubert said that Section 10 of the TOP Act provides for up to 10 years’ imprisonment for any person who is caught performing an abortion whilst not qualified to do so in terms of the TOP Act.

“Section 10 also imposes a possible imprisonment penalty where the abortion was performed at a non-recognised facility or where prescribed record keeping is not done,” says Joubert.

Joubert presented a lecture entitled “Do advertisements for abortions equate to legal abortions?” at the provincial Department of Health and Social Development in Polokwane in November last year.

In the ASA code preface it says that “advertising is a service to the public and as such, should be informative, factual, honest, decent and its content should not violate any of the laws of the country” (paragraph 11). Advertisements may not deceive and mislead consumers. Appendix A, concerning medicinal related products and advertisements containing health claims, states in par 1.2 that “advertisements shall not make claims concerning safety of a product or exaggerated claims…”

Joubert said that, to date, only one clinic group, Mary Stopes, had been cleared by ASA to advertise safe and pain-free abortions.

“Unfortunately, it seems to have paved the way for many others to make unsupported claims about ‘safe and pain-free’ abortions.”

Joubert discussed a typical abortion advertisement. The abortion is advertised to be performed by a certain doctor, a claim which is likely to be false. A health care practitioner is registered with the HPCSA with a name and a surname, not Dr Angela or Dr Dick or Dr Trevor. The wording “legal or legalized abortion” on the advertisements is expressly used to deceive a pregnant woman into believing that the advertised abortion conforms to legal requirements.

“Termination of pregnancies has indeed been legalized, but there is an Act to regulate it. These ads make no mention of prescribed conditions such as an approved facility,” Joubert said.

The TOP Act is very clear about approved facilities. Termination of pregnancies may only be performed at places approved by the Minister of Health. Such a facility will, inter alia, give access to medical and nursing staff, give access to an operating theatre, have appropriate surgical equipment, will supply drugs for intravenous and intramuscular injection, have emergency resuscitation equipment and access to an emergency referral centre or facility and will have been approved by the Member of the Executive Council by notice in the Gazette.

“Performing abortions in a place not approved by the Minister may lead to a conviction and a fine or imprisonment of 10 years,” Joubert said.

The wording “affordable or cheap” creates the impression that abortions are otherwise expensive and likely unaffordable.

“These words will appeal to uninformed and financially challenged women. The truth is that primary health care has been made available to all South Africans and pregnancy is covered thereby. According to the law, you are entitled to have a free abortion at a government hospital or clinic during the first three months of pregnancy,” Joubert said. Girls and women are being lured into illegal, backstreet abortions because of ignorance.

“The police should be aware of the fact that the so-called doctors performing backstreet abortions and their accomplices should be criminally prosecuted. For the municipality, the issue should not be whether or not these people have asked permission to put up posters; they are advertising a totally illegal activity,” Joubert said.

The SAPS Makhado spokesperson, Capt Maano Sadiki, said on March 15 that they were discussing how best to deal with the situation of the town’s being inundated with abortion advertisements with the Makhado Municipality. Municipal spokesperson Mr Louis Bobodi told Capt Sadiki on the same date that they were trying to remove all the advertisements.