What to Expect When You’re Expecting: Considering a Supervisory Constitutional Remedy to Address Obstetric Violence in Public Healthcare

Abstract

Obstetric violence is perpetrated against birthing or pregnant people and includes verbal abuse, performing procedures without consent, physical violence, denial of pain medication, and neglect. This conduct violates various constitutional rights, including the right to dignity, equality, healthcare, bodily integrity, privacy and, in some cases, the right to life, as research has established a link between maternal mortality rates and obstetric violence. This problem appears to be systemic and if litigated on, may require a remedy aimed at bringing about structural change. The constitutional provisions on remedies provide for appropriate relief which is just and equitable. The remedy prescribed must also be effective. In instances where systemic issues arise, our courts have used supervisory constitutional remedies to bring about effective relief. The focus of this article is to consider the use and development of supervisory constitutional remedies and to look at other instances where systemic failures have occurred, identifying how the courts have used different supervisory remedies such as structural interdicts, independent oversight over compliance and the appointment of a special master, to address a systemic problem. I show that the specific circumstances that were present in the cases where supervisory constitutional remedies were used, also exist in a case dealing with obstetric violence.