DOCTORS AND CONSCIENTIOUS OBJECTION TO ABORTIONBY ANNA WALSH

PRINCIPAL, ANNA WALSH LEGAL CONSULTING

ADJUNCT ASSOCIATE PROFESSOR, SCHOOL OF LAW, UNIVERSITY OF NOTRE DAME

ISSUES FOR DISCUSSION

• Conscience and the Person

• Conscience and the Law

• Medicine and Conscience

• Conscience Protection Clauses

• Reasonable Accommodation of Conscience for Abortion

CONSCIENCE AND THE PERSON

• It is inherent in a person to pursue the good

• Conscience is the act by which we judge what is good and what is bad

• Feelings of guilt and shame motivate us to pursue the good

• However what is good may differ between people

• Not all will be motivated to act in accord with their conscience

CONSCIENTIOUS OBJECTION (‘CO’)

• A CO is a strong moral belief that compels a person to refrain from an act

• It need not be a religious belief, though often it may be associated with it

• Permitting a CO does not mean one accepts the basis of the person’s belief

• Rather, one accepts that they have a right to hold and manifest that belief

HUMAN RIGHTS AND FREEDOMS

• Human rights and freedoms are said to be inherent in all people, at all times

• Magna Carta Libertatum (‘Great Charter of the Liberties’), 1215

• United Nations Universal Declaration of Human Rights, 1948

• International Covenant on Civil and Political Rights, 1966

• Incorporation of ratified treaties into Australian domestic law

FREEDOM OF CONSCIENCE

• “Everyone shall have the right to freedom of thought, conscience and religion

• This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching

• No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice…”

• Article 18, International Covenant on Civil and Political Rights, 1966

LIMITATIONS TO FREEDOM OF CONSCIENCE

• Freedom of Conscience may be limited when prescribed by law

• On the basis that is necessary to protect public safety, order, health, or morals

• Or the fundamental rights and freedoms of others

• Article 18(3), International Covenant on Civil and Political Rights, 1966

RESOLVING CONFLICTS

• Determined by the courts

• Values of the state – the ‘margin of appreciation’

• Proportionality between infringement of rights and intent of law

• Level of public interest determined by its citizens, elected representatives

• Impact on others, number of people seeking the exemption

MEDICINE AND CONSCIENCE

• Medicine is a special profession, with fiduciary duties to the patient

• Ethics of medicine should reflect its ends

• Contemporary healthcare• Divergent views as to what is ‘good’ for the patient

• Elevation of respect for patient autonomy as a leading principle

• Together with justice and economic basis for healthcare decisions

• ‘Value neutral’ medicine

REASONABLE ACCOMMODATION BY PROFESSION

• Medical profession supports doctors personal right to CO

• Except where the exercise of CO breaches the law

• And where the exercise of CO may potentially harm the patient• An emergency – potential for imminent death

• Potential for serious physical/mental harm which may or may not imminent

• ? Delay, inconvenience, hurt or embarrassment in obtaining abortion information

MANDATORY REFERRALS FOR ABORTION

• Accepted by a number of countries and organizations as reasonable

• Participation in an act - indirect yet material- a key step in the chain?

• Do doctors have a monopoly on information on where to obtain abortion?

• Is a referral necessary in the particular state?

• Is the penalty for non-compliance appropriate?

• What harm befalls doctors with a CO to abortion in facilitating abortion?

• Will mandatory referrals address a shortage in doctors willing to perform abortion?

INTERNATIONAL CASE LAW EXAMPLES

• Greater Glasgow Board v Doogan and Anor [2014] UKSC 68

• Janaway v Salford Health Authority [1989] AC 537 • Two examples of the court finding a narrow definition for participation in abortion

• Pichon and Sajous v France (ECHR, No 49853/99, 2 October 2001) • Lawful services must be provided by the health professional, particularly where the health

professional has the power to provide the prescription

• P and S v Poland (ECHR No 57375/08, 18 November 2008)• The responsibility of the state to ensure there are enough doctors to perform abortion

BASICS OF ABORTION LAW IN AUSTRALIA

• National disunity on when abortion is lawful

• Unlawful abortion is a criminal act in some states

• Doctors as gatekeepers for abortion in some states• Based on either maternal health and/or fetal attributes

• Abortion on request up to specific gestational age of fetus in some states

• Different gestational age

• Mandatory referral to non-objecting doctor or non-objecting organisation for information

INTENT OF ABORTION LAW REFORM

• To obtain consistency in the law

• To normalize abortion as a standard medical procedure

• To remove the stigma of abortion as an immoral or criminal action

• To guarantee women have access to timely abortion or information

• To prevent hurt, humiliation or embarrassment

• To extinguish and limit CO to abortion by doctors in certain circumstances

• To punish doctors with CO who breach duty to refer

ALTERNATIVES

• Self referral

• Re-consider why doctors with CO must provide referral/information

• Central register of doctors who will perform abortion

• Where referrals required, central register of doctors who will refer

• Referral to organization that provides the information on abortion (breaking the causal chain)

CONCLUSION

• What is the conflict that drives abortion law reform?

• What are the values of our democratic, secular, morally pluralistic society?

• Should people be able to oppose the state’s ideology without discrimination?

• Is there strong justification for extinguishing or limiting CO for abortion ?

• Can you comfortably apply those justifications to other practices?

• Consider all viable alternatives before displacing CO in medicine