Constitutional Court Rules South Africa Must Supply Nevirapine to HIV-Positive Pregnant Women While Larger Appeal Pending
South Africa's Constitutional Court today ruled that the government must provide nevirapine to HIV-positive pregnant women to reduce the odds of vertical HIV transmission while the court considers the government's appeal of a Pretoria High Court ruling requiring it to expand access to the drug through the public health system, SABCnews.com reports (SABCnews.com, 4/4). High Court Judge Chris Botha ruled in December that the government must provide nevirapine to all HIV-positive pregnant women through its public health facilities to reduce mother-to-child HIV transmission. The government has appealed that ruling, and the Constitutional Court is expected to hear the appeal on May 2-3. However, on March 11 Botha issued an execution order telling the government it must provide the drug while its appeal to the Constitutional Court is pending. The government appealed to the High Court the execution order, but Botha denied the appeal request (Kaiser Daily HIV/AIDS Report, 3/25). Officials then appealed to the Constitutional Court, which heard arguments for and against implementation of the execution order yesterday.
Making the Case
Marumo Moerane, senior counsel for the government, told the court yesterday that the government did not have the capacity to comply with the execution order. When Judge Kate O'Regan replied that the order seemed to give individual health facilities the power to determine their own capacity for delivering the drug, Moerane said that the health department objected to "taking a decision, taking a process, out of the hands of the department and putting it into the hands of medical doctors and superintendents" (South African Press Association, 4/3). Moerane added that the government has created a task force to investigate how to expand its nevirapine program, which is currently limited to 18 pilot sites. He said that to expand access to the drug without first considering data from the pilot sites would be "jump[ing] the gun." Judge Albie Sachs asked Moerane how expanding access would harm the health department, saying that he did not see "how the orderly process (of scientific study) will be damaged by providing at least some succor." Moerane said that the court's decision had caused the department "much anguish" but "repeatedly failed" to tell the judges how expanding the program would adversely impact the department (SABCnews.com, 4/3). Gilbert Marcus, arguing for the Treatment Action Campaign, the AIDS advocacy group that brought the original lawsuit over nevirapine provision against the government, told the court that the government's position that it could not safely expand access beyond the 18 pilot sites was "untenable," calling nevirapine, which lowers the odds of vertical HIV transmission by 30% to 50%, "the closest (thing) we have to a vaccine" (South African Press Association, 4/3).
The court recessed overnight and reconvened this morning, when it unanimously voted to dismiss the government's appeal of the execution order. The ruling gives doctors and hospital administrators, not the government, the power to decide if their facilities have the capacity to distribute nevirapine to pregnant HIV-positive women. The hospitals must also provide HIV/AIDS counseling and testing along with the drug (SABC News, 4/4). The decision, which upholds Botha's order, means that HIV-positive pregnant women "most certainly will get nevirapine before the final" appeal in May, Mark Heywood of TAC said, as AIDS advocates "cheered and danced" outside of the Johannesburg courtroom. The health department did not have an immediate response to the ruling (Nessman, Associated Press, 4/4). However, Moerane said in court that the government had "no intention of disobeying any court order" (SABCnews.com, 4/3). An audio and video interview with Heywood are available online from SABCNews.com. In addition, a video news report on the ruling is available online.
Mandela Endorses Mbeki for Second Term
In related news, former President Nelson Mandela today in a radio interview aired just minutes before the Constitutional Court's decision endorsed President Thabo Mbeki for a second term, calling him the "best man for the job" and vowing not to publicly criticize his government, Reuters reports. However, Mandela said he did not agree with Mbeki's controversial HIV/AIDS policies and would not remain silent on the issue of antiretroviral drugs. "This is not a question from which I can retreat. ... When people are dying -- babies, young people -- I can never be quiet," Mandela said (Boyle, Reuters, 4/4). Mbeki, who has publicly questioned the causal link between HIV and AIDS and the efficacy and safety of antiretroviral drugs, succeeded Mandela in mid-1999 (Agence France-Presse, 4/4). An audio interview with Mandela is available online.