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.