FREEDOM OF CONSCIENCE: Why the right to conscientious objection must be restored
by David van Gend
News Weekly, July 5, 2014
This is an abridged version of an address given to the Life Dinner in Melbourne on June 14 by Dr David van Gend, a Toowoomba GP and Queensland secretary of the World Federation of Doctors who Respect Human Life.
Dr David van Gend
I feel a little out of place coming from Queensland to speak about the wretched situation in Victoria — coming from a state where it is always sunny, where the people are always nice, and where we don’t have oppressive laws that try to compel the conscience of free citizens.
But we are all in this together: an assault on fundamental freedoms in one state will become a precedent for similar abuses in other states.
It was a Melbourne man, Julian Savulescu, now an ethics professor at Oxford, who declared that doctors who will not provide abortion should be “punished through removal of licence to practise”.
In 2006, he wrote: “A doctor’s conscience has little place in the delivery of modern medical care. What should be provided to patients is defined by the law…. If people are not prepared to offer legally permitted, efficient and beneficial care to a patient because it conflicts with their values, they should not be doctors.” Crucial to his argument is his assertion that, “when society has already decided that a service is legal”, it is not for doctors to “compromise the delivery of services”.
When Dr Savulescu’s article was discussed in 2006 in the medical newspaper Australian Doctor, I was given as an example of the sort of doctor who, in his view, “should either get out of the speciality or the profession altogether”.
I gave a different angle to Australian Doctor: that abortion as commonly practised is not a medical service; it is a “medical abuse”, which doctors are bound by their Hippocratic principles and humane conscience not to commit.
Professor Julian Savulescu
And no law, no professional board, has the authority to compel any doctor to violate the principles of their vocation or mutilate their own conscience by collaborating in intentional killing. Yet in Victoria, under section 8 of the Abortion Law Reform Act 2008, that compulsion by the authorities is exactly what doctors and nurses face.
Not long ago, society was a little more civil and did not contemplate using the force of law to compel the conscience of fellow citizens.
Jennifer Jackson, in a textbook she wrote, Ethics in Medicine: Virtue, Vice and Medicine (Cambridge, UK: Polity Press, 2006), says that it is “a hallmark of civilised society that we exercise tolerance towards people with whom we disagree deeply on moral or religious matters… that we find ways to avoid forcing people to disobey the dictates of their conscience”.
Laws to disallow a doctor’s conscientious objection are likely to deter the most conscientious young people from becoming doctors. Is that in the public interest?
And what if the principle of section 8 is extended to other matters such as euthanasia — as happened only last week in the Canadian province of Quebec, which, as I understand, now requires doctors with a conscientious objection to euthanasia to refer their patient to another doctor who will do the job?
And what if the principle of non-objection to abortion is extended to compulsory participation in abortion for all doctors in training?
Of course, that is exactly what many hard-headed strategists would like to see: an ethical purge of sensitive, often religious, consciences from the medical profession, either through Savulescu’s proposed “removal of licence to practise” or by deterring them at the outset.
Dr Denis Napthine
The passage of Victoria’s Abortion Law Reform Act 2008 marked a victory, of sorts, in a 40-year cultural battle, and to seal this victory the victors enacted section 8 to intimidate dissenters. Section 8 is a sinister and bullying measure designed to silence free speech as well as free conscience.
And, of course, these two fundamental freedoms are linked, because free speech — or free argument — is just the expression of free thought, and the thoughts that matter most to individuals are those formed out of deep conscientious conviction. So free speech is the expression of free conscience; they stand or fall together.
As the great poet John Milton declared 370 years ago at the end of an impassioned speech to the British Parliament, “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”
But doctors in the state of Victoria have lost the liberty to argue freely according to conscience, let alone to practise freely according to conscience.
Medical ethicist Professor Nicholas Tonti-Filippini observed last November that section 8 has the power even to silence discussion about conscientious objection.
He wrote: “A doctor who merely discussed with other doctors on Facebook his intention not to refer has been brought before a panel of the Australian Health Practitioners Regulation Authority (AHPRA) and he was cautioned about unprofessional conduct….
“It is extraordinary that the law should compel a doctor to act against most codes of medical ethics.... But it is even more extraordinary to be pursued by the regulator for what one says about this situation.”
The leading medical campaigner on this issue in Victoria, Dr Eamonn Mathieson, puts it best, saying section 8 exists “to put fear into the hearts of doctors who practise medicine with a conscience and a morality different [from that of] the authors of this law”.
And so, on April 28, 2013, we read in a Melbourne daily newspaper: “A Melbourne doctor who refused to refer a couple for an abortion because they wanted only a boy has admitted he could face tough sanctions…
“[T]he couple had asked Dr [Mark] Hobart to refer them to an abortion clinic after discovering at 19 weeks they were having a girl when they wanted a boy.
“By refusing to provide a referral for a patient on moral grounds or refer the matter to another doctor, Dr Hobart admits he has broken the law and could face suspension, conditions on his ability to practise or even be deregistered.”
He said: “I’ve got a conscientious objection to abortion, I’ve refused to refer in this case a woman for abortion and it appears that I have broken the rules.”
This talk tonight is dedicated to that 19-week-old baby girl who was put to death for the crime of being a girl, with the full blessing of Victoria’s evil laws.
It is dedicated to Victorian doctors like Mark Hobart who are being harassed by the authorities because they refuse to collaborate with an oppressive law — a law which, in the judgement of Frank Brennan SJ AO, former head of Australia’s Human Rights Consultation Committee, “carries the hallmarks of totalitarianism”.
How has it come to this, that a quarter century after the fall of Soviet communism and nearly 70 years after the Nuremberg trials, a Victorian statute is described in terms usually reserved for dictatorships?
Lawyer and university vice-chancellor Professor Greg Craven felt justified in labelling section 8 “genuinely fascist”. Professor Tonti-Filippini agreed that “expecting a doctor to act against his conscience is totalitarian”, and the mild-mannered father of general practice in this country, Emeritus Professor John Murtagh, was moved to call section 8 “Stalinesque”.
Do Victorian politicians know no shame, to have provoked such condemnation by such thoughtful men, and to be tolerating the sort of tyrannical law that was more characteristic of our culture’s mortal enemies through a world war and a cold war?
But now the soulless collectivism that so brutalised medical conscience three generations ago is brutalising it again. That collectivism is embodied in section 8, as an exercise in state power crushing individual conscience. In your campaign against section 8 may I suggest that you be unrelenting in highlighting its totalitarian quality.
And you might highlight a central quote from the UK House of Lords’ select committee on medical ethics in 1994, which declared: “the prohibition of intentional killing is the cornerstone of law and social relationships”.
By framing section 8 in terms of violating the very cornerstone of law and social relationships, we will counter our opponents who try to dismiss our conscientious concerns as being merely “religious” and therefore faintly irrational.
Opposition to intentional killing is not some pedantic scruple of religious minds, which a secular society may indulge or dismiss depending on how tolerant it feels. No: it is the foundation of human justice in all civilisations. There can be no more foundational ground for conscientious objection than an objection to intentional killing — yet section 8 has the extreme arrogance to deny even that ground for objection.
Being arrogant wouldn’t matter if section 8 was toothless and unenforceable; but this is a clause with teeth.
Faced with Dr Mark Hobart’s refusal to refer for a sex-selection abortion, I would have expected the Australian Health Practitioners’ Registration Authority (AHPRA) to say, “We have a conflict here between an outrageous law and the time-honoured professional principle of conscientious liberty, and we will not raise a finger to trouble such a doctor unless compelled to do so by government. And if we are compelled to do so by government, we will resign.”
Now that would have been a board worthy of the medical profession and of a free society. But instead, AHPRA chose to interrogate Dr Hobart for refusing to send a 19-week baby girl to her death!
The Australian Medical Association in Victoria has made its opposition to section 8 admirably clear, especially since the case of Dr Hobart, and the president of the AMA federally, Steve Hambleton, said last year: “The Victorian legislation is incongruous with the medical profession’s code of practice and appears to fail to recognise that doctors have rights too.”
Victorian Premier Denis Napthine was initially impressed with this medical opposition to section 8, saying some years ago, “Health professionals of the highest calibre, with the highest levels of experience, are saying to us that clause 8 is fundamentally wrong… And clause 8 is fundamentally wrong.”
Dr Napthine voted against the Abortion Law Reform Act in 2008. So how can he preside over such a law as Premier, and do nothing?
Perhaps the Premier can take courage from another conservative politician who died 10 years ago last week.
Ronald Reagan rejected the cowardly stance of détente with the Soviet Union and condemned the evil empire for what it was.
Along with two other courageous figures, British Prime Minister Mrs Margaret Thatcher and Pope John Paul II, he dared to confront this monstrous system and bring it down.
He famously and unflinchingly demanded, in front of that section of the Iron Curtain that divided Berlin, “Mr Gorbachev, tear down this wall!”
If the Premier of Victoria were to abandon the cowardly stance of détente towards the monstrous evil of the Abortion Law Reform Act, he could start with section 8.
Respectfully I say: “Dr Napthine, tear up this law, and start to heal the conscience of your parliament and your state.”
Dr David van Gend,is a Toowoomba GP and Queensland secretary of the World Federation of Doctors who Respect Human Life. He blogs at www.DavidvanGend.com
 Jennifer Jackson, Ethics in Medicine: Virtue, Vice and Medicine (Cambridge, UK: Polity Press, 2006), quoted in James W. Gerrard, “Is it ethical for a general practitioner to claim a conscientious objection when asked to refer for abortion?”, Journal of Medical Ethics (UK), Vol. 35, Issue 10, October 2009, pages 599-602.
 N. Tonti-Filippini, quoted in J. Kron, op. cit.
 John Murtagh, quoted in Tonti-Fillipini, “Facebook exposes abortion law dilemma…”, op. cit.