Given current controversy over the second exposure draft of the Commonwealth Religious Freedoms Bill it is interesting to note 'Medical referral for abortion and freedom of conscience in Australian law' by
Joanne Howe and Suzanne le Mire in (2019) 34(1)
Journal of Law and Religion 85, which comments
This article examines legislative changes related to abortion regulation in Australia that create obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of conscience in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of freedom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion.
The authors argue
The freedom of conscience of medical practitioners to refuse referral for abortion is a vexed issue. In Australia, it necessitates balancing the rights of patients to access abortion, which is a legal and medically accepted procedure, and the rights of medical practitioners not to refer for a procedure that is contrary to their conscience. In 2013, two doctors in the Australian state of Victoria were subject to investigation for potentially contravening their referral obligation enshrined in the Abortion Law Reform Act 2008 (Vic), which provides that medical practitioners who conscientiously object to abortion must, nevertheless, “refer the woman to another registered health practitioner . . . who the practitioner knows does not have a conscientious objection to abortion.” For one of the medical practitioners, the investigation followed revelations that a doctor had refused to refer a patient for an abortion to facilitate sex selection. In the second case, a Facebook conversation involving a doctor who indicated a conscientious objection to abortion was reported to the Australian Medical Board. In his defense, the doctor wrote to the chairperson of the Security of Acts and Regulation Committee, “I am unable to refer for an abortion, because reason and logic lead me to conclude that it is murder.” The doctor was reportedly cautioned. Following these two cases, a private members’ bill was introduced to the Victorian Parliament seeking to remove the obligation to refer. The bill failed to garner support and was defeated in 2016. The Victorian legislative model led to both Tasmania, and more recently, the Northern Territory, introducing an obligation on medical practitioners to refer for abortion despite their own conscience objection. With these reforms, Victoria, Tasmania, and the Northern Territory became the three Australian jurisdictions to take the strongest position in requiring referral for abortion, despite claims of conscience. A bill proposing similar changes in New South Wales was defeated, though concerns about the bill extended beyond the changes to conscientious objection.
These reforms attracted considerable controversy at the time of enactment. After the Victorian Act was passed one commentator noted, “part of the controversy also stems from the fact that the provision is so unique ... the anomalous nature of the provision has led to questions about its necessity.” The reforms remain inconsistent with legislation in other states, as well as the code of conduct designed to align with Australian national law on regulating medical practice. It may be that this approach indicates a transition in Australian abortion law to prioritize a woman’s right to access health care over religious and secular claims of conscience.
Conscientious objection seeks to balance the interests of the individual and the interests of society. At stake is the freedom of individuals to follow their own beliefs in matters of religion and morality. Freedom of conscience protects the right of individuals to adhere to a religious and moral position, independent of others’ viewpoints and regardless of others’ objections. Conscientious objection also involves complex questions about the interaction between religion and state, morality, personal autonomy, integrity, and individual and societal good. The areas where it is asserted tend to excite passionate disagreement. Issues like euthanasia, abortion, and military service are ones where convictions are often firmly held and contrary views regarded with suspicion, if not disdain. Conscientious objection also emerged as a point of controversy in the course of a national referendum that approved legalizing same-sex marriage. The conservative Coalition Government refused to legislate for freedom of conscience as part of the legislation permitting same-sex marriage, instead convening an inquiry “to examine whether Australian law adequately protects the human right to freedom of religion.”
Despite the presence of strongly held views, it is areas such as these that should be particularly open to scrutiny and thoughtful, even if contrary, argument should be entertained. Accordingly, we argue that society has strong reasons to protect the freedom of conscience of medical practitioners from requirements to advise on, provide, and refer for abortion. Our central argument is that freedom of conscience in the context of referral for abortion is worth supporting for two reasons, first, as an approach that values human integrity and promotes a society in which a healthy diversity of views is tolerated (pluralism), and, second, because regulation that seeks to override conscientious objection is generally ineffective in the face of genuine and strongly held beliefs (pragmatism). Finally, we posit that such an approach is consistent with the history of liberalization of freedom of conscience, including by permitting secularized conscience, in Australia.
Although the religious and philosophical arguments relating to conscientious objection have been rehearsed before, mandatory referral for abortion is a relatively recent legal development in Australia. It is, therefore, timely to consider the specific issues arising from legal constraints on the right of medical practitioners who have conscientious objection to abortion not to refer their patients in need of termination to another doctor. We start our analysis in this article by providing a general background and context to Australian abortion law. We then examine the nature of conscientious objection and the traditional debates around the role of the law in regulating conscientious objection. We then turn to the issue of regulation of conscientious objection to referral for abortion. It is here that the unusually limited approach to conscientious objection has been adopted. We consider the arguments that are made in favor of restricting conscientious objection in the abortion context. In particular, we argue that pragmatism and the advantages of a pluralistic society provide strong arguments for permitting conscientious objection.
As a threshold matter we are not suggesting that conscientious objection to abortion should be unlimited. For example, we make no argument that conscientious objection should be permitted in the emergency situation, where a woman’s life is at risk. Our focus is on whether a legislative obligation to refer is legally and ethically justified.
