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Victorian abortion law: overriding the conscience of doctors

Except for a small article in Quadrant magazine, authored by Victorian Liberal Senator Julian McGauran, the first anniversary of the Victorian Abortion Law Reform Act passed quietly this month. While abortion is often seen as a divisive moral issue Australia has avoided the open societal conflict that has so troubled the United States. Quite rightly Australians tend to take the view that abortion is a decision for a woman in consultation with her doctor.

The Victorian legislation, however, has broken that nexus. The law goes beyond simply legislating the common law position — a position that has broad community support. Section 8 of the legislation undermines the community expectation that women consult with their doctors and requires doctors to either participate in the abortion process or recommend a doctor who will do so. The text of the section is reproduced below.

8: 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.

Senator McGauran refers to section 8(1) as the Henry VIII clause — it demands active support not just silent acquiescence — but 8(1)(a) is unremarkable. It is difficult to imagine that doctors with a conscientious objection to abortion wouldn’t say so. But at the same time, it is difficult to imagine that doctors wouldn’t advise their patients to the best of their professional ability. Section 8(1)(b) is very problematic. A woman no longer consults with her doctor; she demands a medical procedure or doctor-hops on the advice of her doctor.

That is the policy design — the Victorian Parliament has deliberately created this structure. Yet it is not clear that public policy should ever encourage doctor-hopping in this or any other medical issue.

The bigger problem with 8(1)(b) is that it is an attack on freedom of conscience, freedom of religion, and constitutes conscription. It is a violation of section 116 of the Australian Constitution that forbids the establishment of religion, or the prohibition of religion. Not only is section 116 contained in that that portion of the Constitution dealing with the States, but the Commonwealth finances the public health system.

Australia is a signatory to the Universal Declaration of Human Rights.

Section 18 of that declaration sets out the freedoms of thought, conscience and religion. The Commonwealth could use its external power to overrule the Victorian legislation. But quite frankly, why should Victorians look to the Commonwealth to overrule bad law? Why shouldn’t we look to our own parliamentarians to be sensible?

The most astonishing thing about the Victorian legislation is that our parliamentarians gave themselves a conscience vote while overriding the consciences of doctors. This extraordinary act of arrogance is simply unacceptable. We can speculate on what they were thinking, or even if they were thinking. The notion that the parliament is the final arbiter of personal morality and conscience is an extraordinary danger to a free society. This legislation doesn’t just legalise abortion it also silences dissent.

Sinclair Davidson blogs at Catallaxyfiles, these views are his own.

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  • 1
    Jenny Ejlak
    Posted Tuesday, 27 October 2009 at 2:01 pm | Permalink

    The bigger problem with 8(1)(b) is that it is an attack on freedom of conscience, freedom of religion, and constitutes conscription.”

    Anyone reading the actual clause can see that the above statement (and many others in the article) is nonsense. Doctors are not compelled to give up their religion or religious beliefs. Nor are they required to perform a procedure or even refer the patient for a procedure which is against their religious beliefs. Merely to refer the patient to someone who does not share the same conscientious objection.

    Just to be clear, this clause DOES NOT force doctors to refer women for abortion.

    It requires them to refer their patient to a doctor who will provide objective information on all options so that the patient can make an informed decision. One that is based on unbiased information and their own circumstances, not one based on someone else’s belief system.

  • 2
    Ben Callinan
    Posted Tuesday, 27 October 2009 at 2:10 pm | Permalink

    I was typing a longer comment when Jenny’s came up. She sums it up well.

    I would only add that Davidson’s argument presupposes that the provision’s tangential engagemnt with a doctor’s freedom of conscience overrides a woman’s right to exercise control over her own body … a priority with which I disagree.

  • 3
    Timothy Vines
    Posted Tuesday, 27 October 2009 at 2:21 pm | Permalink

    One would assume that reason behind sections 8(1)(a) and (b) is to protect the doctor against a later claim of medical negligence through a failure to treat. If a doctor complies with section 8(1)(a) and then refers the woman to another practitioner under section 8(1)(b) then the doctor cannot later be held responsible for a medical injury sustained by the woman as a result of the pregnancy or abortion.

    As for the Author’s reliance on the section 116 of the Australian Constitution I am afraid he has mis-read the case law on this section. We do not have an ‘Establishment clause’ ala the 1st Amendment to the United States Constitution. Rather, the High Court has held that the government can conscript a citizen to fight, notwithstanding their religion’s prohibition on violence. Likewise, in the DOGS case the High Court held the Commonwealth can fund private religious schools and not fall foul of section 116 (as opposed to the US where such actions would violate the Establishment clause). Only where the Commonwealth actually prevents a person from practicsing their religion - rather than merely force them to do something contrary to a relgious tenant - is the action likely to be unconstitutional. (I don’t support such a narrow reading of section 116 but, without a referendum on the issue, there are only 7 people in Australia who can change the situation).

    Indeed, the High Court has said repeatedly that section 116 only prevents the Commonwealth establishing an official religion (but it can support, or not support, one or more existing religions); it cannot impose a religious test on APS employees (although morning prays in Parliament are OK).

    So, contrary to the Author’s views, the Commonwealth (or Victoria) can certainly compel a doctor to recommend another doctor willing to perform an abortion and not fall foul of section 116.

    If the Author is looking for a way to prevent a government from forcing doctors to perform or recommend abortions he is looking at the right document but the wrong section. Section 51(xxiiiA) prevents the ‘civil conscription’ of doctors and dentists (and perhaps nurses). However, the prohibition only extends to the Commonwealth and, as this is Victorian legislation, there is little room to challenge the legislation.

    And, finally, the common law position is a mess, not an ideal. It is different in NSW, QLD and, until recently VIC. There is no settled precedent and the High Court could, if a case on abortion came before it, set abortion law back 40 years in those states which have no legalised abortion.

    [And, for those who oppose a federal charter of human rights, you cannot call upon a right to freedom of conscious or speech or thought. They aren’t protected nationally].

  • 4
    james mcdonald
    Posted Tuesday, 27 October 2009 at 2:43 pm | Permalink

    See the Democrats’ proposed family-planning laws a few years ago, which I think found a better ethical balance. Their proposal was that any advertisements by clinics which objected to abortion had to say up front, “We do not provide abortion services”. Nothing about having to refer clients to another clinic that does.

  • 5
    William Fettes
    Posted Tuesday, 27 October 2009 at 2:52 pm | Permalink

    What a joke. I can stomach Davidson masquerading his exaggerated libertarian politics and IPA shilling as economic received wisdom regularly on Crikey. But at least that’s his chosen field and he can occasionally make empirically valid points amongst the agitprop. But this is such a fluff, disingenuous article. I’ve read some howlers before from conservatives purporting to invoke the aspiration and content of universalist human rights instruments they neither believe in nor understand, but this takes the cake.

    Why not simply come out and say you oppose abortion. Nobody could serious suggest referral to a doctor is a violation of s116, and it is doubtful the High Court would accept that enlivening of the external affairs power in this context. What happened to the libertarian commitment to localised decisionmaking anyway or parliamentary sovereign over and above the new world order. Just shows you what a fake Davidson is…

  • 6
    SBH
    Posted Tuesday, 27 October 2009 at 3:07 pm | Permalink

    I would add to Jenny Eljak’s response that s8(1) provides a statutory ground (conscientious objection) upon which a doctor may refuse to provide advice on a proposed abortion. This appears to be an additional ground to any other (professional judgement relating to the patients health) ground that may currently exist. The concept that the Parliament should only codify the common law and no further is simply assinine and Davidson must know this. I wonder what other conservative commentators would make of such a statement.

    If I was a doctor and believed that organ transplants were morally wrong should I allowed to provide advice based on my morals rather than my professional knowledge? Should I impose my moral view on someone who came to me for professional advice?

    Further, I would argue that Davidson’s s116 point is subtly but deliberately wrong. Section 8(1) (B) does not prohibit the doctor freely exercising his religion, which is what the constitution says. H can freely refuse to do a thing that offends his religion. It does stop him using his position as a registered health practitioner to impose his religion upon another person who, pointedly, does not share his view.

    The most telling part of this piece is the statement that “Except for a small article in Quadrant magazine….the first anniversary of the Victorian Abortion Law Reform Act passed quietly this month”. Is that because the Victorian Community at large does not share a narrow, male conservative view?

  • 7
    james mcdonald
    Posted Tuesday, 27 October 2009 at 3:20 pm | Permalink

    See http://www.democrats.org.au/articles/index.htm?article_id=82&display=1

    It’s concerned with advertising by pregnancy-services clinics, rather than advice by GPs during consultation. But the principle is sound, it finds a good balance, and could be adapted. Oblige consciencious objectors to state up front to all their patients that they will not help with abortion.

    After all, wartime consciencious objectors are expected to have shown some visible sign of pacifism, not to suddenly come out of the closet the moment the conscription letter appears.

    A sign saying “This clinic does not assist with abortion” could work with the same degree of visibility as the other sign that says “Payment strictly at time of consultation please.”

  • 8
    james mcdonald
    Posted Tuesday, 27 October 2009 at 4:10 pm | Permalink

    And Sinclair: “It is difficult to imagine that doctors with a conscientious objection to abortion wouldn’t say so.”

    No it isn’t difficult to imagine. That’s the problem. A campaigner in disguise as a service provider might simply say “Let’s not make any hasty decisions until we’ve explored all the options.”

    It’s then easy to manipulate the frightened patient by saying “Why don’t you sound convinced?” when she says she wants abortion, and “That sounds very decisive and strong” when she wavers in the other direction.

    A doctor who makes it clear to all that she/he is a consciencious objector, would avoid this problem. And would also do a more credible job of objecting conscienciously.

  • 9
    Lucy
    Posted Tuesday, 27 October 2009 at 6:54 pm | Permalink

    What if the doctor had a deep-seated conscientious objection to vaccination? People do hold those views. Should such a doctor be allowed to refuse point-blank to vaccinate somebody without providing a referral to a doctor who will?

    I don’t think so. We expect professional duty of care to override the doctor’s personal opinions, for good reason: medical care is a right just as freedom of conscience is. As long as doctors are not actually required to perform abortions their freedom of conscience is adequately protected. Dissent is not being “silenced”; there is a difference between suppressing someone’s opinion and saying that a person should have ready access to an alternative view if they so choose.

    I must say this kind of anti-choice junk puts what I previously assumed to be Sinclair’s libertarianism in a different, less flattering light.

  • 10
    JamesK
    Posted Tuesday, 27 October 2009 at 7:16 pm | Permalink

    This essentially removes the right of a doctor to counsel a patient considering abortion if that doctor has a conscientious objection to abortion or more likely one of the many types of abortions dictated as legal by the Victorian Parliament. That includes without question on demand abortion up ‘til 24 weeks and pretty well all abortion after 24 weeks with the consent of another practitioner.

    That is disgraceful and in my view immoral.

    (Edit)

    I suggest that there are many more doctors uncomfortable by our crazy abortion laws than believe in the insane rejection of the recommended vaccination protocols which each clinician must take into account the risks versus advantages for the individual and absolutely not take into account the community benefits.

  • 11
    james mcdonald
    Posted Tuesday, 27 October 2009 at 8:45 pm | Permalink

    JamesK, there’s the key right there: “each clinician must take into account the risks versus advantages for the individual”

    If the clinician has his own ideological axe to grind on the matter, and when it trumps any consideration of risks versus advantages, how can he be trusted to comply with what you just said?

    And “dictated as legal” is a contradiction, unless “legal” means “mandatory” which in this case it doesn’t.

  • 12
    SBH
    Posted Tuesday, 27 October 2009 at 9:20 pm | Permalink

    But JamesK a doctor doesn’t have ‘a right’ to counsel a patient. A patient has a right to some reasonable disclosure. I go so far as to say if a doctor has an implacable moral, as opposed to medical, objection to one course of perfectly legal medical action then they have a moral and now legal duty to disclose that. Wouldn’t it be just dishonest to pretend to give professional counsel when you are so heavily influenced by a moral decision?

    And if I have an implacable moral objection, shouldn’t I have the courage of my convictions and take whatever penalty applies (Thomas Moore style) and in that case what penalty applies? There doesn’t seem to be a penalty in the Act.

    Can I ask you to address the practicality of any putative restriction? Information on how to obtain an abortion is freely available in Victoria. If a doctor refuses to refer what will happen. Assuming the woman doesn’t seek some kind of unspecified redress, his involvement would end there. She would no doubt go off to obtain information from one of the many advertised family planning centres which do provide advice on abortion.

    The real practical effect of this Act is to make doctors tell disclose to their patients a strong conflict of interest. It doesn’t even stop them counseling against abortion, just makes them disclose that part of their reasoning is a moral judgment. Perhaps we should be asking why and Act is required to make doctors disclose this obvious and significant conflict when ethically and professionally they should do so anyway?

  • 13
    John Bennetts
    Posted Wednesday, 28 October 2009 at 12:52 am | Permalink

    I remember a fracas in Merriwa, NSW, many years ago when the town’s only pharmacist refused to sell condoms or the contraceptive pill. The nearest alternative pharmacy is at least a 90 minute round trip.

    Despite this bigotry, Merriwa, in common with many other small country towns, has a declining population.

    Classic fail.

  • 14
    james mcdonald
    Posted Wednesday, 28 October 2009 at 9:04 am | Permalink

    That’s gatekeeping. Which raises a good question: What if the consciencious objecting doctor is the only one serving that district? “Here’s a referral to a doctor who will help with abortion. You can catch the next weekly flight to Perth on Friday.”

  • 15
    james mcdonald
    Posted Wednesday, 28 October 2009 at 12:03 pm | Permalink

    Not such a problem in most of Victoria I suppose. But a concern if it’s a template for other states.

  • 16
    SBH
    Posted Wednesday, 28 October 2009 at 12:26 pm | Permalink

    Like it used to be in the ACT James Mac, girls I knew had to go to Sydney to get an abortion. And you couldn’t buy condoms in Soul Pattinson’s at Woden

  • 17
    kate
    Posted Wednesday, 28 October 2009 at 2:58 pm | Permalink

    If you follow the link to the author’s blog you will find the following reference to this article:

    Jonathan Green, the editor of Crikey, asked for a piece on this topic, so here it is. Read the comments - quite hysterical.”

    Heavens, what a sensitive little flower he is. If he thinks the above comments are hysterical, I guess he hasn’t read much from the anti-choice mob.

  • 18
    james mcdonald
    Posted Wednesday, 28 October 2009 at 5:09 pm | Permalink

    SBH: did you do the gentlemanly thing and drive them here yourself?

  • 19
    james mcdonald
    Posted Thursday, 29 October 2009 at 9:41 am | Permalink

    Kate: Everybody has his or her zone of irrationality. Including me and you, I’m sure. Seems like we found Prof Davidson’s. On other topics, I still value his opinions highly.

  • 20
    SBH
    Posted Friday, 30 October 2009 at 11:48 pm | Permalink

    yes James

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