South Africa's Constitutional Court has ruled against the South African government in its fight with hundreds of state employed doctors and nurses and the Treatment Action Campaign over the provision of an antiretroviral drug to HIV positive pregnant women.
The government has resisted making nevirapine available to thousands of poor women reliant on public health facilities. The drug helps reduce the transmission of HIV to the unborn infant. It is also cheap and easily administered.
The court decided that the state's policy of providing a very limited number of women with the drug in 18 pilot sites was unconstitutional, as it failed to guarantee women their rights in terms of the constitution. Hospitals with adequate facilities will now have to give the drug to women who want it.
The fight has raged for close to a year in different courts, with the government losing at every stage—but fighting on. The government has contested that the drug's safety has not been proved, although it provided no evidence to back up its claim and maintained that the courts should have no role in the creation of health policy. The Constitutional Court ruling, which was unanimous, has shown clearly that the court will hold the government's policy up against the constitution and rule accordingly.
For AIDS activists this has been a huge victory—but the next major battle may be a little late for Zackie Achmat, the most prominent leader in the Treatment Action Campaign. This battle will be for the provision of antiretroviral drugs to poor people with HIV/AIDS who cannot afford to buy the life prolonging drugs.
Battling with a drug resistant infection of the chest, Mr Achmat has AIDS and a low CD4 count and will not take antiretrovirals until the government shows that it will provide antiretroviral treatment to its citizens.
At present in South Africa the only people able to receive the drugs are those with access to private health care.
However, South Africa has an estimated five million people who are HIV positive—and most of them are poor.
Mr Achmat was not able to address a plenary session at last week's Barcelona AIDS conference in person because of his ill health, but he addressed the session through a video link, calling on drug companies to provide licences to generic drug manufacturers so that poor people can have more access to cheaper drugs.
Several studies have shown that the government could begin to provide antiretroviral drugs to patients who most need it in hospitals that can provide the required monitoring and testing as well as the drugs.
The government has repeatedly refused to address the issue—largely, it seems, because of the lead given by President Thabo Mbeki's eccentric views on AIDS. He has several times expressed doubts about the link between HIV and AIDS.
Health minister Dr Manto Tshabalala-Msimang has for a second time been quoted as saying that nevirapine would “poison” South Africa's women—a view she has apparently repeated since the court finding.
Several government spokespeople have expressed the view that antiretroviral drugs are poisonous.