Conscientious Objection and Victorian Abortion Law

Monday, 2 June 2014  | Denise Cooper-Clarke

Controversy continues to surround section 8 of the Victorian Abortion Law Reform Act 2008. Some see this section as necessary to protect women’s health and the “right” to access to abortion, others see it as a dangerous and unnecessary restriction of the basic human right to freedom of conscience. Section 8 reads:

Obligations of registered health practitioner who has conscientious objection

    (1)     If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—

        (a)     inform the woman that the practitioner has a conscientious objection to abortion; and

        (b)     refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

    (2)     Subsection (1) does not apply to a practitioner who is under a duty set out in subsection (3) or (4).

    (3)     Despite any conscientious objection to abortion, a registered medical practitioner is under a duty to perform an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.

    (4)     Despite any conscientious objection to abortion, a registered nurse is under a duty to assist a registered medical practitioner in performing an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.

Most Human Rights Instruments, including Article 18 of the Universal Declaration of Human Rights, recognise the right to freedom of thought, conscience and religion. However, particularly in the health professions, this freedom is under attack. For example, in 2006, bioethicist Julian Savulescu argued in the British Medical Journal that “a doctor’s conscience should not be allowed to interfere with medical care”. He particularly had in mind doctors who refuse on religious grounds to be involved in any way with abortion.

Savulescu’s article provoked a flood of outraged responses from doctors around the world. However, he continues to argue that doctors should not be able to practice according to their personal beliefs and values and that respect of conscientious objection is grounded in “a dangerous moral relativism: that morality and moral rightness are culture-specific, or equate to individuals’ own values or desires.”[1]

Because all people are created in God’s image as moral beings, the experience of conscience is one of the most fundamental aspects of being human. But while conscience is a useful “alarm”, it is not infallible: we live in a fallen world where everything is affected by sin.  Conscience may become desensitised, or “seared” (1 Timothy 4:2). Or it may be overly sensitive or “weak” (1 Corinthians 8:1-13).   But Paul’s instruction to the church community is that, even when we do not share another person’s conscientious objection, we should never urge them to violate their conscience. To do that would be to defile a conscience.

But what about in the secular state? Not all conscientious objections are equal before the law. We would not accept that anyone could, for example, choose to drive on the right rather than the left side of the road because of a ‘conscientious objection’. Savulescu is right in this: allowing people to live only according to their individual conscience would be a form of relativism and incompatible with the rule of law. But the alternative should not be to refuse to allow any room for individual conscience at all. As a society, we ought to be able to respect conscience while accepting that there are limits to what someone can do (or not do) ‘in conscience’. Societies make laws which they expect everyone to keep. Of course, good laws will not violate the conscience of citizens en masse. Good laws will allow as much as possible the exercise of conscience in a way that is compatible with the common goals of society.

In even the most liberal society, some actions are be prohibited by law. Then there are actions which are legally permissible but not obligatory: for example, adultery or induced abortion. Another, smaller category of actions are obligatory, such as reporting child abuse (for certain persons). In regard to prohibited actions in medicine, we may agree with Julian Savulescu that personal beliefs, whether religious or not, cannot justify a doctor committing an illegal act, such as euthanasia or female genital mutilation, even if their conscience allowed or even required it.

Health professionals have an obligation to act in the best interests of the patient. They should not be allowed to refuse to treat or care for a patient because they are female, or of a certain race, or homosexual, or of a particular religion. Or consider a doctor who is a Jehovah’s Witness who has a conscientious objection to ordering or administering a blood transfusion. I do not believe that a doctor (or nurse) should be allowed to withhold a life-saving treatment, such as a blood transfusion, on conscientious grounds.

Julian Savulescu and others would argue that refusing to perform an abortion in an “emergency”, or refusing to refer a patient for an abortion is similar to failing to give a blood transfusion. But is it? Not at all. In only a tiny minority of cases will termination of a pregnancy be required to save a woman’s life (the “emergency” referred to in section 8, and most doctors would not object under these circumstances). And in such cases, delivering rather than killing the foetus (i.e. abortion) can be performed. Further, the requirement for referral is based on the assumption that a referral for an abortion is necessary. It is not: women can simply attend the Royal Women’s Hospital or one of the many abortion clinics which advertise in the Yellow Pages and online. No referral from their GP required. A further peculiar and unworkable feature of Section 8 is that it assumes that all doctors either have a blanket objection to abortion or a blanket approval, which is not the case. Even relatively “pro-choice” doctors might object to late-term abortion and/or sex-selection abortion, and even relatively “pro-life” doctors might agree with abortion in cases of rape or incest. And many doctors’ views would be along a spectrum in between. This law requires doctors to adopt an absolutist stance one way or the other—complete prohibition or complete approval. Former Labor Minister—now Catholic priest—Michael Tate thankfully introduced selective conscientious objection to military service in Australia. Surely something similar is possible for doctors?

Finally, examples of obligatory actions in medicine arise because of the nature of medicine and its goals of preventing and treating disease, easing suffering, and promoting health. Giving a life-saving blood transfusion falls clearly in the category of being directed towards the accepted goals of medicine. But there are some practices in medicine, such as abortion and euthanasia, where there is by no means consensus as to whether they are in accord with the goals of medicine, either within the medical profession itself, or in society more broadly.

Laws should reflect a moral consensus within society. When and if the law is changed to reflect a shift in consensus (as has happened with abortion, and may well happen with euthanasia or physician-assisted suicide), a genuinely liberal society will seek to maximize liberty of conscience for those who continue to have deeply held objections.

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