The section achieves the right balance between two important but competing rights: the obligation to refer a patient protects conscientious objection by allowing objecting doctors to refuse service, but not frustrating a woman’s right to reproductive health services.
The Age editorial (9/11) is right in claiming that ”matters of conscience, morality and freedom can be political minefields”. But its call for repealing the section shows a narrow understanding of rights to conscience, one that places religious claims to conscience as more significant and important than non-religious claims, or indeed women’s right to access lawful health services.
Section 8 recognises freedom of conscience. A doctor who objects to abortion need not perform one. Knowing women are the primary users of reproductive health services, however, and that such objections jeopardise women’s effective rights and freedoms to make their own decisions, the act seeks to balance the competing rights.
Maxine Morand, introducing the bill into Parliament, explained that, ”Clause 8 has been carefully crafted in order to strike an appropriate balance between the rights of registered health practitioners to conduct themselves in accordance with their religion or beliefs, and to freedom of expression, and the right of women to receive the medical care of their choice.” That balance is manifest in the obligation to refer a woman to another practitioner.
Mark Hobart, who is being investigated by the Medical Board of Victoria over his refusal to refer, had the option of avoiding this situation by putting a sign in his surgery clearly stating his conscientious objection to abortion. By so doing, he would have alerted women to his views and would not have placed himself in circumstances where he could choose to breach section 8. It’s a simple solution that many objecting doctors refuse to do. We may ask why.
The obligation to refer is often misrepresented by objecting doctors as a radical departure from current practice. This is simply not true. The obligation is found in the International Federation of Gynaecology and Obstetrics’ ”Ethical Guidelines on Conscientious Objections”, in the World Medical Association’s ”Declaration on Therapeutic Abortion”, in the Royal Australian and New Zealand College of Obstetricians and Gynaecologists’ ”Code of Practical Ethics” and the NSW Health ”Policy Directive Pregnancy – Framework for Terminations in NSW Public Health Organisations”.
Section 8 reflects developments in other jurisdictions. As a result, international treaty committees, foreign and domestic laws are recognising that women’s rights to reproductive healthcare must not be subverted by objecting medical practitioners. This is as it should be. Modern, secular, democratic societies cannot allow the religious views of some to be imposed on those of other views.
To claim the right to freedom of conscience is absolute is also plainly wrong. Article 18 (1) of the International Covenant on Civil and Political Rights recognises everyone’s right to freedom of thought, conscience and religion. Nonetheless, 18 (3) allows ”limitations … necessary to protect … health, … or the fundamental rights and freedoms of others”. Section 8 is exactly such a limitation.
But of equal concern is the problematic interpretation of freedom of conscience.
Conservative assertions about freedom of conscience or moral responsibility are ”premised on a set of assumptions which are fundamentally oppressive to women. Moral responsibility in pregnancy gets construed very narrowly as just responsibility towards the foetus.” However, looking at conscience from a broader perspective, such as physical and psychological health and wellbeing of the mother, poverty and financial circumstances, the ability to provide physical and emotional care to children, ”may make the choice of abortion the morally responsible decision”.
A recent European case, P and S v Poland, provides an interesting example of the problematic understanding of freedom of conscience. It concerned the freedom of conscience of a 14-year-old rape victim seeking an abortion. She and her mother went to hospital to get an abortion. The hospital called in a Catholic priest. This resulted in harassment by anti-abortion activists outside her home and by text. Her details were put on the internet by the Catholic Information Agency. The hospital then took the matter to the Family and Custody Court, which resulted in her mother losing parental rights, the girl being placed in a juvenile shelter in a locked cell and her mobile phone confiscated.
The girl lodged a complaint with the European Court of Human Rights alleging, among other things, a violation of her right of freedom of thought, conscience and religion. She further alleged the state’s failure to regulate the practice of conscientious objection in the healthcare setting in public hospitals resulted in an unlawful, unjustifiable and improper imposition of religious views on others. The court agreed, unanimously denouncing the ”deplorable” conduct of the Polish
Anne O’Rourke works in the Department of Business Law and Taxation and is vice-president of Liberty Victoria.
This article originally appeared in The Age.