CGE Report on Choice on Termination of Pregnancies in South Africa Report

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Health

09 March 2022
Chairperson: Dr K Jacobs (ANC)
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Meeting Summary

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Commission for Gender Equality on an investigation into choice of termination of pregnancies in South Africa – 2021

In a virtual meeting, the Commission for Gender Equality (CGE) presented a report to the Committee on its investigation into the choice on termination of pregnancies (CTOPs) in South Africa.

In the Commission's report, it was found that there was limited or no monitoring by the National Department of Health (NDOH) of the termination of pregnancy (TOP) services within the nine provinces. 
This was deduced from the observation that the NDOH could not provide any information on this service and how it was being managed. In addition, the number of facilities reported by the national Department differed from those reported by provinces. The responses suggested that each province managed the TOP services and that reporting structures or requirements by the NDOH appeared to be absent.

Amongst its findings, the CGE reported a lack of facilities and trained professionals across the provinces, which resulted in backlogs at many of the facilities that provide TOP services. The CGE also found that TOP services were not easily accessible, especially in rural areas, resulting in members of the public being denied access to TOP services in these areas. The Commission acknowledged that the unwillingness of healthcare professionals to conduct TOP services due to conscientious objections was regarded as a barrier to rendering these services. It had found that the Department did not have a standard interview questionnaire for use during recruitment processes, and there was no standardised funding model for TOP services across the provinces. 

Based on these findings, the Committee said the CGE needed to ensure that the NDOH was held accountable for the outcomes of its investigations and the implementation of its recommendations.
The Chairperson stressed that the CGE, because it was a Chapter 9 institution and not a non-governmental organisation (NGO), should have more bite when dealing with these issues. The Committee was also of the view that the narrative presented did not take into account the constitutional rights of physicians and healthcare workers, and asked for feedback on how the rights of healthcare workers were being accommodated.

 

Meeting report

Opening

The Chairperson said the Commission for Gender Equality (CGE) would brief the Committee on its investigation into the choice on termination of pregnancies (CTOP) in South Africa. Mr M Sokatsha (ANC) would continue to chair the meeting if he lost signal because he was experiencing load-shedding.

CGE investigation into choice on termination of pregnancies

Ms Jamela Robertson, Chief Executive Officer (CEO), CGE, took the Committee through a detailed presentation on the CTOP report (please see attached). The presentation included the mandate of the CGE and the investigation processes and findings of the report.

The investigation report found that there was limited or no monitoring by the National Department of Health (NDOH) of termination of pregnancy (TOP) services within the nine provinces. The investigation determined that the NDOH could not provide any information on this service and how it was being managed. In addition, the number of facilities reported by NDOH differed from that reported by the provinces. The responses received suggested that each province managed TOP services and that reporting structures or requirements of the NDOH appeared to be absent.

The CGE had observed the lack of facilities and trained professionals across the provinces, which resulted in backlogs at many of the facilities that provide TOP services. The CGE also found that TOP services were not easily accessible, especially in rural areas with certain districts, regions, and local facilities not providing TOP services. The impact of this was that members of the public were being denied access to TOP services in these areas.

The Commission acknowledged that the unwillingness of healthcare professionals to conduct TOP services due to conscientious objection was regarded as a barrier to rendering the services. It was observed that the Department did not have a standard interview questionnaire for use during recruitment processes. There was no standardised funding model for TOP services across the provinces.
 
Discussion

Mr Sokatsha assumed the acting Chairperson role and said that he would ask the questions of Dr S Thembekwayo (EFF) because she was travelling.

The Western Cape (WC), Northern Cape (NC) and Eastern Cape did not have trained CTOP providers. He asked what the reason for this was and when would these provinces be provided with them. He asked if the same findings could be applied to different facilities that offered CTOP services.

Ms N Chirwa (EFF) requested that the CGE provide the Committee with the detailed report because the presentation lacked sufficient detail. She asked the CGE to list the names of facilities that provide and do not provide CTOP services because there were over 4 000 facilities in SA. The number of facilities that provided this service was very little compared to the number of facilities that were in SA. She requested that the CGE provided a demographic breakdown of the age, race and geo-graphics of women that did not have access to CTOPs. The presentation of the CGE did not shed light on the women that were most vulnerable in terms of the demographic breakdown. The presentation provided a very vague example of when a case was lodged. She requested the CGE to provide a report on the examples of the cases that it received, what the outcomes of these cases were, and what the backlog was.

She said the CGE indicated that seven cases had been lodged, and asked how many had been resolved. She asked what the best strategy was to make it publicly known that the CGE offers different services of support because she received many complaints and resolved them with the help of the former Commissioner of the CGE. The CGE might not be prioritising the cases it dealt with, because it was a very important institution.

She commended the CGE’s first report on sterilisation and said that it was ground-breaking, but it had not done anything to defend it. It had all these findings in its reports as a Chapter 9 institution, but nothing was tangible. The Public Protector (PP) was an example of how far a Chapter 9 institution could go to defend its findings. The CGE could do much more for the women in SA based on the findings in the report. It must implement tangible manifestations because this was what the Committee envisioned for the CGE.

She asked what would be done regarding the innovation with the National Department of Health (NDOH) because some of the referrals did not require the women to go physically to hospitals or clinics. Why had it not made a recommendation to introduce online and telephonic consultations for referrals? Many countries were doing it, but women in SA were still required to leave work to go in physically for referrals. She currently had a case on termination because the woman had gone to a private clinic as she did not have access to a public facility. She asked what the CGE would do to hold the NDOH to account to provide better access to women.

She reiterated that the information in the report was not sufficient because the findings were very broad for such an important issue. The statistics showed that one in four women that carried a pregnancy that they did not want, became locked into poverty. Women that had to continue with an unwanted pregnancy would stop with their future endeavours, and get locked in a job, an abusive family and relationship settings. The most devastating option would be to seek back-street abortions.

She was disappointed with the findings because the CGE was a Chapter 9 institution that needed to do more.      

Ms E Wilson (DA) said the presentation did not provide the Committee with all the information about how many women were undergoing abortions in registered health facilities because this must be on record. She asked how many back-street facilities there were, and how many women attended these facilities.  The accessibility in Limpopo to basic health services was abysmal because, with the cost-of-living so high, it was difficult for women to travel. She raised concern about the inequality and inaccessibility of health services because it allowed back-street facilities to exist, and wanted to know what the CGE planned to do to stop the use of back-street facilities.

The high rate of rape statistics was alarming because it affected the abortion statistics. She asked which stakeholders the CGE planned to work with, to address this issue. She raised concern about the number of teenage pregnancies, as well as the number of pregnancies between the ages of 10-12.  What was being done to educate individuals to prevent pregnancies -- what did the CGE plan to do about the alarming statistics? A large number of the pregnancy statistics could be attributed to rape incidents, and she was aware of cases where teachers were involved in sexual activities with pupils.     

Ms H Ismail (DA) said the CGE indicated that it had engaged with the national and provincial DOHs. She asked what strategies had been discussed to address the recommendations provided by the CGE. Based on the findings of the report, she asked if it would be able to determine which age groups were most affected by CTOPs and if it could, to provide the Committee with this information. Emphasis needed to be placed on the education system to try to educate teenagers to prevent teenage pregnancies.

The CGE had indicated that all health facilities needed to provide CTOP services. She asked if this recommendation was based on the demand at ground level or statistics or a matter of rights on services that must be provided. Many of the facilities did have the capacity required to empower the service delivery. She asked what the Commission recommended to ensure that sexual perpetrators were financially responsible for pregnancies caused in rape cases because government did not have the budget to adequately address this issue.   

Ms M Clarke (DA) asked how many abortions were estimated to take place outside public and private facilities. What were the reasons for women going to unregistered facilities? How many babies had been abandoned in the last three years, and what was the vacancy rate for the officials that conduct CTOP services for each province? She asked what recurring complaints the CTOP facilities received and the main reasons for these complaints, and which province received the most complaints.

The presentation indicated the great systems the CGE had in place, but also the weak implementation. She asked if the other provinces could learn from the WC because the presentation indicated that it had implemented the systems correctly. The CGE had pointed out the important role of the DOH in ensuring better quality services. She requested that the DOH brief the Committee on how it planned to address the recommendations of the CGE. 

Ms A Gela (ANC) said that some provinces were struggling to implement its programmes. She asked if the CGE had met with the leadership of these provinces, and what the outcome was. SA battled with different health conditions, like non-communicable diseases and child and mortality issues, and she asked why more funds must be made available for CTOP services.

Ms M Sukers (ACDP) asked what the cost analysis was for CTOP services at the national and provincial level. She agreed with Ms Chirwa that the Committee must be provided with a detailed report about the termination of pregnancies.

The presentation had indicated that the WC protected clients that looked for CTOP services and the professional staff who had conscientious objections. She asked the CGE to provide clarification on what constituted ‘conscientious objection.' She highlighted the words ‘sensitise’ and ‘breach of contract.’ When it came to TOP, the findings did not consider the religious convictions of South Africans. There was not only one narrative when it came to TOPs, because in South Africa there were many citizens that had serious conscientious objections. The CGE could not conduct research from the perspective of abortion as the only option when women were experiencing a crisis pregnancy. She asked how health officials that had conscientious objections were protected. The CGE could not consider the TOP only as a sexual reproductive health right -- it must take into account the other elements.

She raised concerns about the high number of pregnancies between the age of 10-12 and asked the CGE to provide a detailed report on it. This occurred in a different context, and this was the problem with statistics. She agreed with Ms Gela about the funding of the programme, and said that the budget of the DOH was under pressure.

She encouraged the CGE to not use the word ‘empowerment’ when addressing the TOP because of issues like religious beliefs and convictions. She said that education on the positive and negative consequences of abortion could not be done in isolation. Empowerment should not be coercion, and the constitutional right of health officials was not being considered in the presentation. She asked if the CGE had conducted research regarding women's access to education on the CTOP.

The acting Chairperson highlighted the lack of facilities in the Northern Cape. He said the NC consisted of many areas that had no access to health facilities and asked how this affected the statistics of the province.  

CGE's response

Ms Robertson replied to the question on the number of facilities in the provinces and said that when it conducts research or investigations, what it finds was what it reports. It was also related to what the CGE did about the weaknesses it identifies. The issue of ‘jurisdiction’ must be considered because as a Chapter 9 institution, the CGE acted as a watchdog. It monitors the country, makes recommendations and follows up on the recommendations. Its Establishment Act specifies the lengths it could go to regarding follow-ups. When it has briefed the relevant entities that oversee the provision of services, it would do a follow-up on the recommendations. The CTOP report had been produced in March 2021 and a follow-up study had not yet been conducted. Follow-up targets were indicated in its annual performance plan (APP) because it did not expect results in a short period of time. The CGE considers and monitors its recommendations regularly.

She replied to the question on what it planned to do about its recommendations, saying that it reports on the performance of the system that it investigates and the stakeholders that need to collaborate to address the issues that arise. Some of the findings require not only the intervention of the DOH but also other departments.

The role of education in the CTOPs was to identify the weak areas in service delivery and the need to collaborate with the Department of Basic Education (DBE). When it came to education, the CGE public education department worked with provincial departments on providing public education.

Regarding the question on which facilities provided CTOP services, the Committee would find the desegregated data variables in the presentation. It had been found that a province would give a number of TOPs that had been conducted from 2018/19, 2019/20 and 2020/21, which was a broad figure. When it came to the age of females, the desegregated data was intended to help duty bearers in the different areas of work to make informed decisions. She alluded to information about age and race, acknowledging that there were no statistics that referred to these statistics in the presentation. When some provinces provided education, they would report on the age categories of under 18s and over 18s. This was not indicated in the report, because the CGE could not comment on the type of education the provinces provided.

The CGE investigated cases that were reported to it because its Establishment Act mandated it to fulfil this obligation. A case had been reported by an individual who was turned away by a facility and the CGE had intervened. The case was resolved and she received access to the TOP services. She said the consequential management of the staff member involved did not fall within the jurisdiction of the CGE. This was why the CGE had made a recommendation that the DOH follow up on the case. She reiterated the mandate of the CGE stopped at a certain point, and that was why more than one entity was required to intervene.

She replied to the question on obtaining tangible results, saying that the CGE was mandated to intervene at certain points. In some cases, it subpoenas entities when its recommendations are not implemented, because its investigation recommendations were legally binding, unlike its research recommendations. The CGE did conduct follow-up procedures to ensure that its recommendations were implemented. It engages with committees and departments that are involved with what it is investigating, to monitor the implementation of its recommendations. The CGE could not discipline a public service official -- it could only investigate the issue and then engage with the relevant entity.

The CGE had not made any recommendations on innovative strategies the DOH could use. It would use all the questions and comments made by the Committee to improve the investigations that it conducts.

She replied to the question about physical referrals, saying it would improve on its recommendations regarding technology to ensure that women in isolated areas did not need to go physically to facilities when online consultations could be conducted. The presentation had indicated that in some provinces, referral and complaints systems were conducted online. She would consider the recommendation made by the Committee because SA was entering the fourth industrial revolution (4IR).

The numbers indicating how many women receive TOP services were in the report, but one did not get the entire breakdown of who these women were in terms of race. This was why emphasis needed to be placed on the problem, with desegregated data across all sectors. Processes needed to be standardised and indicators used to assist service providers with desegregated data, because the data would be useful when making resource allocation decisions.

The CGE had not yet conducted a study that determined how many unregistered facilities conducted TOPs. Based on previous research, the reason for the use of unregistered facilities was one could not get a facility that had been established to do back-street abortions. The law and the DOH would attest to this, because it was illegal, and that was why women were doing it secretively. She alluded to an old example in the 1980s, where health professionals would assist with abortions because no law had been established at that stage. There were a lot of reasons why women went to unregistered facilities.

She replied to the question on its partnerships, saying that it collaborates with a large range of stakeholders, depending on the topic it investigates. It engages with the DOH at the national and provincial levels regarding health issues relating to TOPs. When it came to public education, it partners with communities.

She replied to the questions on high teenage pregnancies and rape statistics resulting in unwanted pregnancies and said these were issues that the CGE had not yet investigated. When the statistics of teenage and ten-year-old pregnancies had been released, the CGE had decided to get involved. It had sent out public statements indicating that there was a need to identify why ten-year-olds were falling pregnant because it was statutory rape. The perpetrators must be arrested, and these were the types of recommendations it had made to the relevant stakeholders. The CGE had not investigated the perpetrators, but this was an investigation that it could embark on.

TOPs were an emotional subject, and she alluded to her introductory remarks that the CTOP Act needed to be implemented to mitigate unnecessary deaths. The CGE did not force people to do what they did not want to because everyone had the right to their opinion. It emphasised that it implements its constitutional mandate because some provinces indicate that it appoints officials who were willing to take part in the CTOPs. The officials of CTOPs were aware that their religious beliefs could not infringe the rights of others. The issue of CTOPs was not 'black and white,' because the CGE acknowledges the human rights of individuals and the religious beliefs of individuals. Provinces deal with these issues differently -- like the WC, which implemented a policy that seemed harsh, and other provinces that conduct workshops for health officials to be more informed about CTOPs. The presentation had indicated that TOPs were not the only alternative offered for family planning, and it was for this reason that some provinces conduct family-planning counselling, because it helps to save lives.

The accessibility of services was an issue that the duty-bearers needed to improve on. The CGE needed to address the accessibility of services in the Northern Cape because it was related to analysis of the budget. The presentation had explained the funding model, where stakeholders receive an equitable share, but do not receive the details. The CGE needed these details to ensure that resources were allocated to areas where they were most needed. These issues need the intervention of National Treasury (NT), and it needed to engage with the DOH on the allocation of resources. SA had limited resources, but these had to be allocated in the way that previously disadvantaged people did not remain disadvantaged.

She replied to the suggestion that provinces might learn from the WC and agreed that the WC did extremely good work. It would be good if other provinces could emulate the WC, but the Committee needed to remember that certain provinces performed better because of the resource allocation. The CGE needed to ensure that all provinces perform and receive the necessary resource allocation.

Access to education was very important. Poor people were mainly affected by the lack of education on TOPs because it was historical. The CGE needed to address this issue and minimise the inequalities. It provided education at a community level, and the DBE also played a role in the programme. She did not know how many years it would take for everyone in SA to get access to education.

The CGE needed to economically empower women because this would contribute to not having to face the CTOP issue. She stressed that health workers were not coerced and that the rights of women and the religious beliefs of health workers were taken into account regarding the CTOPs.

Discussion continued

Ms Sukers said that the Committee had received a two-page report from the CGE, and asked if it was the report that Ms Robertson had been referring to. The report sent to the Committee had dealt with the scope of the investigation and promoted the TOP, which was problematic. Members of the Committee had raised the issue of the TOP in the context of women’s accessibility to health facilities. She asked the CGE what the aim of the report was. The investigation must be based on a holistic approach, including pre-and post-counselling. This had to be included in the investigation as the holistic services that women required when considering a TOP.

The CGE had not considered every aspect in its investigation, because the emotional and spiritual aspects were not considered. It could not focus only on the promotion of abortion when the majority of SA’s population was Christian. The basis of the CGE’s investigation was not clear. She raised concerns that the CGE had advocated that when a child falls pregnant, criminal prosecution must follow, and had advocated for choice regarding basic sexuality education because pre-teen pregnancy was a major issue. She reiterated that the CGE dealt with issues in isolation and not holistically. The CGE must not ignore the issues raised by the Committee because of its engagement at ground level in its constituencies.  She said Ms Robertson had made a problematic statement that the health workers' beliefs must be protected. She raised concerns that the WC had indicated that the health worker was in breach of contract if the health worker did not assist women with the TOP. This matter needed to be raised with the Western Cape Provincial Parliament (WCPP).

Ms Chirwa said that she did not want the CGE to manipulate the Committee and pretend to be a non-governmental organisation (NGO). The CGE could not indicate that it was unable to do anything about the findings of the investigations because it was a Chapter 9 institution. It had not provided clarity on public education, although it was part of its mandate. It had the option to explore the opportunities in the justice system and could litigate entities. In the case of ‘forced sterilisation,’ the CGE could have taken the DOH to the Constitutional Court because the DOH had not implemented the recommendation it made two years ago. 

The CGE had presented findings that indicated that there was a high probability that children who fell pregnant had been raped. It had not done anything about this and said that it needed to be investigated. SA had been faced with the issue of rape for decades, and the CGE had not done anything to correctly address this issue and ensure that women and children were protected. She asked the CGE to provide the Committee with details of which ministers and departments they had held accountable for work it did not do, and which cases it had taken to court. She asked what it would do to ensure that its recommendations were implemented to allow women access to TOP services because the DOH would not implement its recommendations. She said that the problem might be the leadership of the CGE because of its loyalty to certain political parties. The women and children could not afford the CGE to have allegiances, because it alluded to the ‘jurisdiction’ of certain issues. She said nothing was stopping the CGE from taking the issues to court.

Ms Sukers asked the CGE who had requested the investigation into the CTOPs.

CGE's response   

Ms Robertson said Members had to note that these were the difficult issues that the CGE dealt with. Laws and services were in place, and the CGE was trying to reduce the maternal mortality rate because of the unnecessary deaths that occurred. It may seem like a contradiction, but the dialogue about the rights of health workers and patients must be continued. These types of issues required the intervention of different entities. The access to CTOPs and determining if the CTOP Act was implemented had been the basis of the investigation. The CGE had not tried to just look at access to CTOPs in isolation. The Committee needed to note that when an investigation or research study was conducted, there were criteria that had to be followed. In some cases, the criteria did not cover all the variables of the investigation or research study. When the presentation had alluded to the promotion of the TOPs, it had also alluded to prevention as the first step to unwanted pregnancies. There were family planning facilities in certain provinces that had the resources to promote the ‘prevention’ step to unwanted pregnancies.

This was also related to the issue of resource allocation. In the early 2000s, the DOH had taken the initiative to promote health care. This was implemented, but it was still found that certain issues fell through the cracks and these were the topics that the CGE had focused on. She reiterated that the CGE would note all the comments made by the Committee as recommendations.

Ms Chirwa had requested that the CGE provide clarity on why it did not take cases to court where it was found that its recommendations were not implemented. Ms Robertson replied that certain cases had been litigated, but not the issue of 'forced sterilisation' or the issue of 'CTOPs.’ In the 2022/23 annual performance plan of the CGE, there were projects that would deal with litigation. She admitted that the CGE might not be taking cases to court, but it did fulfil its mandate. The CGE had noted the comments made by the Committee and took them seriously.  It would subpoena departments if they did not implement its recommendations.

She said the pregnancies of ten-year-olds would be an issue the CGE would investigate because it had received these statistics only last year. She noted that it promoted it as ‘statutory rape,’ and at the same time promoted sexual education, which seemed contradictory. A balance needed to be established in this regard. A ten-year-old could not be seen as being able to give informed consent to sex. The law stated that an individual could give informed consent at a particular age. The main part of the promotion of sexual and reproductive health was informing women and men to make informed decisions and promoting access to health services. She stressed the investigation into ten-year-old pregnancies was very complicated.

Ms Sukers indicated in the ‘chat box’ that Ms Robertson had not replied to her question.

Ms Robertson replied that she was not making an excuse, but the investigation had been initiated before her term as CEO. She would respond in writing because she did not know the details.

Chairperson's comments

The Chairperson had re-established his connection and made the final comments.

He said the CGE as a Chapter 9 institution must enforce itself in cases where its recommendations were not implemented. The study did not reflect and address the concerns that had been raised by the Committee. It was an indictment against the Committee and SA that ten-year-olds were falling pregnant. The CGE had talked about informed consent and criminal charges, but many years ago one would not talk about this because when one considered human reproduction and referred to ten-year-olds falling pregnant, then there was something wrong with society. It meant that not only adult men or older boys were culpable of ‘statutory rape’. The CGE needed to do an in-depth investigation into this issue.

Committee minutes    

The Chairperson took the Committee through the minutes of 15 February, which were considered and adopted without any amendments.

The Chairperson took the Committee through the minutes of 16 February.

Ms Gela said that there had been a question posed by Mr Van Staden about the documents that were burnt during the fire at Parliament.

The Chairperson had indicated that the Committee would receive a response in due course. She wanted the Members to note that the information in its meetings was recorded, and requested that the Chairperson emphasise this.

The minutes were considered and adopted without any amendments.

The Chairperson took the Committee through the minutes of 23 February. The minutes were considered and adopted, with minor amendments.

The Chairperson then took the Committee through the minutes of 2 March 2022.

Ms Clarke indicated that her attendance was not noted in the minutes, which were considered and adopted with its minor amendment.

Committee matters
 

Ms Wilson said that the Committee had conducted virtual meetings for the past two years, but Parliament did have the capacity to hold face-to-face meetings while adhering to Covid-19 protocols. She requested that the Committee hold its meetings in Parliament because it would make a big difference.

Ms Clarke agreed with the comments of Ms Wilson and said that it would be great for the Committee to meet in person.

Mr P Van Staden (FF+) agreed with the Members and said that the Committee had been one of the first to conduct virtual meetings. This showed SA that it was responsible and it was time that it conducted its meetings in person because the world was returning to normality.

Ms Gela said that all the Members must be vaccinated and lead by example. It would give the country the confidence to also vaccinate. She asked the Chairperson to advise the Committee if physical meetings could be held.

Ms Ismail agreed with the Members, but she objected to the statement on vaccinations made by Ms Gela. The country had not taken a stance to make vaccinations mandatory, so there were no grounds for indicating that Members must be vaccinated to attend physical meetings.

Ms Gela replied that although vaccinations were not mandatory, she had made the statement to encourage the Committee to get vaccinated to lead by example.

The Chairperson said that he had noted all the requests and that the Committee would send a written request to Parliament.

Due to Parliament changing its schedule, the Committee would not be able to conduct a study tour to the United Kingdom (UK). The Committee could either cancel or postpone the study tour.

He suggested that the Committee re-start its work on the National Health Insurance (NHI) Bill, given that its request to conduct a study tour had been denied by the change in the schedule of Parliament.

Ms Wilson said that she had made the initial request to conduct the study tour to the UK because it's National Health System (NHS) did have similar features to SA. She suggested that the study tour be conducted after the recess because it was very important.

Mr Van Staden agreed that the study tour should be postponed, and the Committee could submit a request to Parliament to conduct it after the recess.

The Chairperson said that he noted the suggestions of the Members, and proposed that the Committee start with the work that would otherwise have been delayed.

Mr Van Staden requested that the Secretary of the Committee send the new date of the study tour for Members to get their visas ready.

The Chairperson said that the Members could start their visa process because they would be required to travel to the UK. 

The meeting was adjourned. 


 

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