Conscience and Abortion Law Reform

Nurturing Justice 4 (2008) October 2nd

Victoria's Abortion Law Reform Bill 2008, recently passed in the Legislative Assembly, and will soon be debated in the Legislative Council. There has been some unprecedented public criticism of the legislation's clause 8 "Obligations of registered health practitioner who has conscientious objection."

The Clause has 4 Subsections, the final two of which specify that a medical practitioner (3) or a nurse (4) with conscientious objections to abortion, are under a duty to perform an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman. Subsection (2) is the section that says that Sub-Section (1) does not apply to a practitioner when under the duty set out in (3) or (4).

So, what does Subsection (1) say?

(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.

The prima facie meaning of "conscience" which the legislation embodies here simply refers to the practitioner's unwillingness to engage in the medical procedure that would procure an abortion. The problem is that this is exactly how this law interprets this situation and, in all likelihood, it will conflict with how a "conscientious objector" to abortion would define it. It simply refers to the obligations of the health practitioner who has conscientious objections - that is how the section is defined - and it is interesting to note that it avoids the term "duty of care". By so doing, it all too conveniently ignores the fact that "conscientious objection" cannot be restricted to a "private" desire of a professional person. The formulation effectively wants to "privatise" what is clearly a public objection. A "conscientious objection" is not simply a matter of a private wish to keep oneself pure; it is a refusal to accede to a public interpretation of a public act, in this case concerned with the taking of human life and viewing that as merely an a-moral medical procedure, a technical adjustment to the body's mechanism. That, it would seem, is the "anti-conscience" bias embodied in this section of the legislation. "Conscientious objection" is reduced to meaning an unwillingness to act as the health practitioner for the person who wants this procedure. In so doing, the proposed law effectively avoids the conscientious health practitioner's advice against viewing such a procedure in purely technical terms. The formulation thereby seriously misconstrues the doctor-patient/ nurse-patient relationship.

Point (b) seems to suggest that the law will respect the view of such a medical practitioner, or such a nurse, on condition that they participate in a process of referral. This is completely wrong and just how wrong it is can be seen when we consider what the law would require of "conscientious objectors" - they are to have a legal obligation to be party to the implementation of the Victorian Government's decriminalizing of abortion whether they have "conscientious objections" or not. In other words, the legislation purports to recognise conscience, so long as the conscientious health practitioner is not conscientious and certainly not to the extent of being completely opposed to this law's support for abortion as a medical procedure which is to be the right of those women who seek it.

Consider this Clause, and think about the situation that the Sub-Section is trying to regulate. Does it not embody a concern by the Parliament, the law-makers, for the woman presenting herself in this way to her medical practitioner? But if this law were to pass the law would now say that she has a right to a medical practitioner who will accede to her request for an abortion. Well, if that is the case then the Victorian Government should supply the doctors who are willing to become operatives in the State's project! And it should not require those opposed to abortion on demand to do its work for it.

Look at the description of the request, as it is formulated in Sub-Section (1). Note that this is all under the heading of "obligation" - it is clearly designed to allow for an abortion and to remove anything "conscientious" that stands in the way. The problems that will arise from the way this law construes the request, remain to be seen I suppose. But the problems seem to be manifold.

This formulation seems to imply a process in which a woman who wants an abortion can simply procure one. It assumes she has a right to a medical system that provides no hurdles, at least no hurdles of a "conscientious objection" sort. But what happens when those "conscientious objections" are also affixed to judgements of a specifically medical nature? The formulation certainly reads as if "conscientious objection" is merely a private reservation. But this formulation seems to say that whatever "conscientious objection" to abortion may be, it can have nothing to do with the workings of medical procedures. In this sense, any conscientious "conscientious objection" is actually rendered objectionable, a failure in designated obligations. Why? The legislators, and those writing this law, have apparently fallen for the mythology that health care is simply a matter of an abstract right to technology and medical procedures whenever they are demanded? Whatever happened to the obligation of my health practitioner, and my right that s/he tell me, conscientiously, things that I didn't want to hear? How can we have ever swallowed this kind of antihuman nonsense parading as human rights for "mere medical procedures"?

Well that seems to be the fix those who are trying to decriminalize abortion have got themselves, and us, into by their legislative effort to control unwanted pregnancies by allowing abortion on demand. They want the law and the health practitioners (better: "technicians") to have the legal power and obligation to perform this medical procedure.

In this instance they have slipped up badly. Consider the health practitioner who, does not have an absolute conscientious objection to abortion (i.e. in all possible cases). What happens when s/he finds that, in a particular request, an abortion should certainly not be performed and develops a conscientious objection to it in this instance?

And the phrase "the practitioner must" at the end of the paragraph has the effect of taking the request "to advise on a proposed abortion" and turns it into a request to have it performed. This is highly contentious and problematic and as noted this has the effect of a Governmental intervention into the doctor-patient/ nurse-patient relationship in an unprecedented way. What I mean is this: a woman might indeed know she needs the advice of a registered health practitioner about a proposed abortion. The "proposed abortion" may have originated not with her but with her husband or her family. She might request but is it only the "conscientious" who must immediately (?) change the topic and tell her that a "conscientious objection to abortion" prevents her from further discussion of the case? What this wording suggests is that a woman's turning to her health practitioner "to advise on a proposed abortion" is to be respected as a firm intention to do so. That is confirmed by the phrase "the practitioner must".

Might it not, in fact, be the initial step in not doing what she requests on first presenting? Why should the law be so presumptuous in this way?

As it stands, the law does indeed read as an attack on Hospitals and other agents who, over a considerable period, have developed a pro-life ethos, which indeed gives expression to an institutional "conscientious objection" to abortion. The stand of Roman Catholic hospitals is well known. But the pregnant woman who presented herself to a Catholic hospital, in the way the law anticipates her request, might actually be in need of hearing why this hospital does not perform abortions and why some of her fellow citizens have a conscientious objection. The way this law is written seems to exclude, if not over-ride, the sometimes incredibly complex situations in which a pregnant woman or, for that matter, a pregnant couple, might find themselves and in which their path to health may in fact eventually lie in a direction which initially seemed completely counter-intuitive.

In my view the legislation should be scrapped. Those proposing the incredible imposition upon the consciences of health practitioners should stop their brave new rights talk, admit that the legislation has the unintended consequences of seriously restricting the civil liberties of some people and institutions (even if it has the surprising supportive rhetoric of Anne O'Rourke, Vice President of Liberty, Victoria) and look again at what needs to be done to support every effort to make every pregnancy a wanted pregnancy.

That's the political issue that needs to be addressed with good policies which our Nurturing Justice will sooner or later have to consider. Better sooner.