Nurturing Justice 5 (2008) October 8th
Back in 1994, I
followed a debate in Melbourne's The Age newspaper. You can access my
letter to the Editor here. It concerned the abortion
pill mifepristone which, it was baldly stated, should be made available to
Australian women because in clinical trials it had registered a 65%
"success rate". At the time we were told (The Age editorial "New
pill on trial" Thursday 18 August 1994) that tests were being carried out
on groups of women in Sydney and Melbourne. It turns out that there were then
40 Victorian women, in the early stages of their pregnancies, who had chosen to
take part in trials of the drug. You may want to explore this by reading the
October 8, 2005 article from The Age here. You will notice
that in this 2005 article there is only an oblique reference to the earlier
(1994) "success rate" and as a consequence the writer of the article
does not seem alert to the fact that this was exposing the prima facie possibility
that pregnancy had been procured for scientific purposes in order to
bring about an abortion as part of a scientific experiment all
appeals to "ethical approval" and "informed consent"
notwithstanding.
Victoria's Abortion Law Reform Bill 2008 is being debated even as I type this edition of Nurturing Justice. I have suggested last time that given the legislation's problematic re-definition of the legal meaning of conscientious objection, this legislative effort has failed to effectively and justly reform the law. The aim, it was said, was to de-criminalize abortion, the de facto reality of which Victoria has lived with since the Menhennit ruling of 1969. But what are we to say about the 1994 RU486 experiments in abortion for scientific experimentation? Is that something that comes within the ambit of this same de-criminalizing legislation as well?
Back to the drawing board I would say! After all, the irony is that the current Bill - at least in the form in which it was initially tabled in Parliament - seems to be framed in a way that ascribes "full agency" to the pregnant woman seeking abortion, but does so in a way that requires all health practitioners to facilitate this "demand", whatever their conscientious views about performing an abortion in any particular instance.
And that is not all that the legislation does. When we consider the 39 years since the Menhennit ruling, we realise that while abortion was still listed on the statute books as a crime, successive Governments have effectively adopted a policy of turning a blind eye to something that has become a well-established part of the health-care system. During these years, doctors, nurses, health-care professionals, hospitals in the public and the private health sectors, have already been working away and developing an informal system of referral that did not compromise conscientious objectors to abortion, or at least minimised the compromises that would have to be accepted in any workplace.
But now we are faced with legislation that, in its formulation, seems to ignore the 39 years of respect for "conscientious objection", within all sectors of the health-care system, and it seems that the legislation wants to call into existence a new ethos to replace that which has been developed around this issue during this time.
And so, the controversial Clause 8 Sub-Section 1 has the appearance of an ambit-claim, and unfortunately the framers of this "Obligations of registered health practitioner who has conscientious objection" rightly deserve the critical observations of Frank Brennan and Greg Craven.
· Denying People right to conscience akin to fascism - Greg Craven, constitutional lawyer and V-C ACU The Age Sept 26
· Totalitarian abortion law requires conscientious disobedience - Frank Brennan Eureka Street Sept 24
Yes, the Clause and Sub-Section evinces the distinct flavour of an ambit claim - an attempt to "push the envelope" to see how far the legislation can go in constraining those who cannot, in all good conscience, ascribe "full agency" to a pregnant woman who demands it. So the question is: what is this commitment to "full agency" that the legislation seeks to enshrine? And what are its implications for our social life?
The first thing that has to be said here is that if it is a valid principle then the law should respect it fully and without any diminution whatsoever. The law should then be framed with a recognition that not only will the laws that govern our public life respect "full agency" for all, but it will anticipate that all of us should act knowing that all of the "others" with whom we live will also be entitled to the same public-legal recognition of "full agency". It is the second part of this sentence which is missing from this legislation. In fact, in its one-sided view that abortion is exclusively a woman's right, the legislation has adopted a view of "full agency" that is completely mythic, that is focused exclusively upon the presenting pregnant woman who will then find her "full agency" under threat by that health practitioner who has a conscientious objection to abortion.
Though the term may only be implied in the wording of the "conscientious objection" clauses of the law, the way "full agency" functions as a presupposition of the legislation - and its parliamentary defence - actually confuses "full agency" with the neo-liberal view of a right to maximize one's choices. That is why this version (perversion) of "full agency" cannot be formulated without restricting the choices of the agent the legislation identifies as "registered health practitioner who has conscientious objection".
And at this point the discussion about RU486 experiments on human subjects reappears. These issues are easily viewed as "something else" because they expose the impact of the pharmaceutical dollar and the neo-liberal ideology at one and the same time. RU486 should not be forgotten here, because it is an important chapter in the story about "abortion rights", and this chapter reveals much about how we got here to this point. So the full story about "full agency" cannot leave out the right of those women to have their pregnancies terminated in the interests of scientific research even had those pregnancies been procured with termination guaranteed (at least, to something like an 65% "success" rate). It is hardly likely that those "informed consent" pregnancies let alone their terminations would be listed in the criminal code.
Actually, I don't expect that this aspect of the discussion is going to "get on the table" of public debate - my experience with the dodgy way in which the former Prime Minister, and the avowedly Christian members of his cabinet, danced around embryonic stem-cell research has taught me a lot about the way public debate rolls on with little attention being given to "suppressed premises" especially when that comes to the interface between pharmaceutical companies and what people claim should be done with human seed, eggs, cells, embryos and bodies.
But I would strongly advise readers to think very carefully about this doctrine of "full agency" and what it means and how it has made an impact even though we have not been privy to the details of its grisly implications. What could it mean for our future? We are dealing with a subject that seems consistently to be on the cusp of great nastiness. Justice may not be served by any over-heating on the part of those seeking to promote public justice. One only has to go back and consider the time-line that was covered in the 113 minutes of Amazing Grace to confirm that fact. Overcoming structural injustice is no magical trick. And, after all, we are dealing here with a doctrine of human autonomy that is already deeply presumed in our public life, in the policies and the options we find ourselves debating, in the habits of mind and heart by which we make our choices. The practise of human autonomy is well-established in our society - it is already a sine qua non with respect to the way in which unwanted pregnancies are dealt with. And the religion of human autonomy is not going to be overcome by human autonomy.
Let me put it another way. The health-care "ethos" that arose after 1969 and which was formed by the Menhennit ruling had its roots in a post-war generation of "she'll be right" pragmatism - "she'll be right" has now had its day and a new style of pragmatism is being sought in order that women can find "full agency" in the task of mothering. As the post-war pragmatic expectation has played itself out, the grand-children become involved in pragmatism's renewal, in a new wave of coping, and it is often given the name of post-modernism. But still, the same underlying rationale is that life is a matter of successive experiments in finding happiness and nothing should be allowed to stand in the way. The problem here is that, for all its pragmatic and post-modern ardour, the legislation gives expression to a view of rights that might just as well have come from Thomas Hobbes (1588-1679) for whom political life is little more than a great power-tripping scientific experiment in which whatever is just is determined by what the legislation requires. According to Hobbes, nothing is really wrong; "wrong" means only that the ruler will punish you (ref Clouser). Might is right and so you'd better get your conscientious objections into line with how the new wave pragmatists define your obligations.
I suspect that those who are so confident that this legislation will not bring about an increase in the abortion rate, are overlooking something more profound than statistics. The fact is that this legislation enshrines an underlying view of life that says we are all driven by drives that are basically physical, that propel us forward to minimise the fears we have "clinging together against the dark". Allegedly, our essential humanity is found by solving problems "to modify our beliefs and desires and activities in ways that will bring us greater happiness than we now have" (Rorty). And so, we note how this view has worked its way deeply into the legal perception of pregnancy that this legislation endorses. And such pragmatism, in which moral duty is confused with the search for personal happiness, actually creates a deeper problem which the law cannot solve.
The problem can be captured in this way: if all of life is merely a peculiar life-experiment, then pregnancy will be viewed similarly. Getting pregnant in the first place will be about an act to find greater happiness than is currently enjoyed. (So far so good). But then such happiness as it relates to pregnancy is now, in an important sense, legally framed by a "24 week option". Why 24 weeks? That is the time when, thanks to advances in medical science, certain tests can be made which not only provide diagnostic indicators of the health of the foetus but can also tell the parents the sex of the child. [At this point the views of Oxford ethicist, Julian Savulescu, have been canvassed - he advocates a mother's right to terminate because of wrong sex.] And so, should the 24 weeks of pregnant bliss be interrupted by bad news - whatever that bad news may be - the new legal framework seems to offer a choice to the pregnant woman by which she can affirm: "that was then, this is now". And so, it is up until 24 weeks that a mother's right to terminate will be respected in the law.
So, when pragmatism dominates, the subsequent legal questions are no longer about whether the experiment should, or should not, take place, or even whether it can be terminated; the primary questions are about timing; and when pragmatism dominates in legal discussion about pregnancy, the debate simply becomes a matter of the lawful regulation of the timing of the termination. For all its pragmatic relativism, and by legalising the alleged right of the woman's demand for termination up until 24 weeks, this new legal framework still leaves those who make use of its provisions exposed to a potential bitter unhappiness that the law itself cannot rectify. Would-be parents will need help to understand that, as far as child-bearing as much as child-rearing is concerned, pragmatism just doesn't work.
Nurturing Justice seeks to encourage a
sustained Christian political contribution by affirming our God-given calling
to build sustainable human communities which will promote life and strengthen
our interdependence - the way of public justice will help us avoid the myths
and contradictions of human autonomy. But a Christian understanding of the
myths and contradictions of human autonomy, as they are accepted and enshrined
in changes to the law, requires a comprehensive political philosophy, one that
finds its point departure for seeking justice in the gentle and merciful rule
of Jesus Christ, the ruler over all of the earth's political regimes.
Nurturing Justice
October 2008
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