July 15th 2017

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Articles from this issue:

COVER STORIES Liberal discontents take internal struggle to Shakespearean heights

NATIONAL AFFAIRS Cardinal Pell charged: the process is the punishment

EUTHANASIA What Boudewijn Chabot can teach Victoria

INTERNATIONAL AFFAIRS Taiwan's 'friends' make the Beijing cut

FREEDOM OF CONSCIENCE NT abortion law oppressive towards health professionals

HEALTH Gardasil(R) and the man upon the stair, Part I

AFRICAN AFFAIRS Special force deals with scourge of poaching

MUSIC Andrea Keller: transpositions of death and grief

CINEMA Cars 3: On ageing without rusting

BOOK REVIEW Biggest democracy makes big strides

BOOK REVIEW A refinement of the Industrial Revolution


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NT abortion law oppressive towards health professionals

by Michael Quinlan

News Weekly, July 15, 2017

In March 2017 the Northern Territory Parliament passed the Termination of Pregnancy Law Reform Act (the Territory Act). As a result from July 1, 2017, surgical abortions will be decriminalised in the NT and medical abortions will be legal.

The Territory Act also establishes a “bubble zone” of 150 metres around abortion clinics. This prevents a wide range of conduct that might result, for example, in a person not going ahead with a termination from taking place in that zone. Similar bubble zones already exist in Tasmania, Victoria and the ACT, and are under consideration in New South Wales.

The Territory Act also seeks to override the conscience of medical professionals in the case of abortions. This article looks at overrides of that kind in relation to non-emergency abortions where the mother’s life is not in any imminent danger.

Under the Territory Act, when a woman requests advice from a medical practitioner who has a conscientious objection to abortion or where such a medical practitioner is approached to perform that procedure, the medical practitioner has two obligations: to inform the woman of their conscientious objection and then quickly to refer the woman to a medical practitioner known not to share their conscientious objection. This sort of conscience override already exists in Victoria and NSW.

Like the Territory Act, the Victorian legislation requires medical practitioners with a conscientious objection to abortion to refer patients seeking that procedure to a medical practitioner who does not share that objection. In NSW the override is not contained in any legislation. Instead it is found in a NSW Ministry of Health Policy Directive. The NSW policy does not apply to every NSW health professional, but where it does apply it creates an obligation on conscientious objectors to “direct” a patient to a health professional who does not share their conscientious objection.

Greens MLC Mehreen Faruqi has asked the NSW Parliament to create a legal obligation in that state for any medical practitioner who has a conscientious objection to abortion to refer a person seeking that procedure to another health practitioner who does not have such a conscientious objection or to a local Women’s Health NSW centre.

Australians have a range of views on abortion. Some strongly support abortion on demand at any and all stages of foetal development and some (it seems to be about 10 per cent) strongly oppose abortions from the moment of conception in all circumstances.

Health practitioners also have a wide range of views. In a British survey 10 per cent of obstetricians and gynaecologists described themselves as conscientious objectors, but the majority of that 10 per cent supported abortion for severe foetal abnormality.

If that is the same in Australia, about 10 per cent of Australian health practitioners might be expected to be conscientious objectors other than in the case of foetal abnormality. In that circumstance, less than 5 per cent might be expected to have a conscientious objection to abortion. On this basis about 90 to 95 per cent of Australian health professionals would not have a conscientious objection to abortion.

Generally speaking Australian law does not override people’s consciences. Australia’s other states and territories specifically protect health practitioners who have a conscientious objection to abortion. Australia’s major political parties have always given parliamentarians a conscience vote on moral questions such as abortion. Federal legislation and legislation in most states and territories protects religious ministers who hear confidential religious confessions from having to disclose those confessions.

Generally speaking, doctors are usually free to decline to perform elective surgery. So, what is it about abortion that warrants conscientious objection overrides?

Some argue that health-care professionals choose their profession “knowing in advance the full range of duties they will be expected to perform”. They say there should be no rights of conscientious objection. (see Christian Fiala and Joyce H. Arthur, “Dishonourable Disobedience: Why refusal to treat in reproduction healthcare is not conscientious objection”, Woman: Psychosomatic Gynaecology and Obstetrics, Volume 1, December 2014, pp12–23, 2014)

One difficulty with this argument is that these conscience overrides do not only apply only in areas such as maternity or gynaecology where requests for abortions or information on abortions might most be expected. A Victorian GP was the subject of investigation for refusing to provide a referral to a couple who wished to obtain a termination for sex-selection grounds.

Fiala and Arthur’s approach also presumes that health practitioners enter their profession knowing that their freedom of conscience will not be protected and that, contrary to the reality, medicos never change their minds. This ignores the fact that some of the strongest campaigners against abortion – think of Dr Bernard Nathensen and Abby Johnson, for example – had previously been advocates for liberal access to abortion and providers of abortion services.

Fiala and Arthur also argue that those entering the medical profession “are expected to subordinate their own interests and beliefs in order to serve others, even those they dislike or disagree with”. Strangely, arguments like this only seem to be made about abortion (although they are also now being raised in Canada in relation to euthanasia). No one argues that health practitioners must subjugate their own interests to those of their patients by, for example, working for free, making house calls, cancelling their holidays or carrying out or providing a referral to someone who will carry out any operation or provide any and all drugs that a patient asks for.

In fact, generally we don’t want our health professionals to do whatever we ask them to do – we want them to tell us when we are asking them for drugs or surgery which they think would hurt us or hurt someone else.

If Fiala and Arthur’s view that abortion is “highly ethical” and that “a gestational sac or foetus … has only the potential to become a person … and is not an individual human being” is correct, then perhaps their view that all health-care practitioners should provide abortion services would be perfectly sound.

But not all Australians and not all health practitioners agree with that view. Some regard the foetus as an individual and as a second patient who also has interests to be protected. Some, for example, share the Catholic Church’s view that abortion is not good for society and that all human life is equally deserving of respect and protection both before and after birth.

This divergence of views is not likely to change and is a characteristic of a diverse society like Australia. Surely faithful Catholics ought to be able to join the health professions – particularly given the huge number of Catholic hospitals, hospices, aged-care facilities and nursing homes. Surely women who would never contemplate abortion ought to be able to seek medical attention from medical professionals who will support them and provide them with excellent medical attention.

So it is important that health practitioners come from a range of backgrounds and viewpoints. The alternative would be the state imposition of an orthodox position on abortion and the injustice of patients being denied access to doctors who share their views.

These conscience overrides threaten the maintenance of a health-care system that is representative of Australia’s diverse society. They discourage faithful Catholics and other conscientious objectors from choosing and remaining in a career as health practitioners in the states and territories in which they apply. As a result of these conscience overrides some health practitioners will retire, some will move to parts of Australia that do respect conscience, some will seek to work in areas that are less likely to attract abortion inquiries or requests, and some will simply refuse to obey the law and risk investigation and cancellation of their right to practice.

All of this deprives patients of access to the services that these health practitioners might otherwise provide, including health-care to patients who share their views about the value of embryonic human life. In this way these conscience overrides act to reduce – not to increase – patient choice.

But what about the health practitioners who instead act contrary to their consciences and obey the provisions? Won’t that increase the availability of information about abortion? Perhaps. But there is growing evidence that requiring health practitioners to act against their conscience is dangerous. It can lead to moral distress involving feelings of helplessness, anxiety, anger, guilt, sorrow and frustration. It can have adverse effects on self-respect, self-esteem, patient care and job satisfaction, cause burnout and contribute to health practitioners’ leaving their vocation.

Worse still, health practitioners who consistently act against their conscience can become desensitised to their conscience. They are at greater risk of developing indifference to patients and a weakened ability to make the types of ethical decisions critical for health practitioners. None of this is good for their patients.

So, what benefits might justify these provisions notwithstanding these concerns? They are elusive. Abortion services, including medical abortion by the use of mifepristone, are widely available in Australia. Information about abortion providers is a fingertip away on the internet for most Australians. If there were concerns of any inadequacy of the information, available to women seeking to access abortion services, state and federal governments could surely identify ways to supplement the information available.

If this was thought necessary, surely it could be done without the need to compel health professionals to act against their conscience and, where relevant, their religious faith. In my view the legislation and the policies that seek to override the consciences of health professionals in the Northern Territory, NSW and Victoria ought be removed as matter of urgency.

Professor Michael Quinlan is Dean of the School of Law, Sydney, at the University of Notre Dame Australia.

This article is an amended and abridged version of the paper “When the state requires doctors to act against their conscience: The religious freedom implications of the referral and the direction obligations of health practitioners in Victoria and New South Wales”, which was recently published in The Brigham Young University Law Review.

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