All Australians should be concerned when a law forces other Australians to act in a way that they believe is gravely wrong.
Freedom of conscience is a foundational principle of a diverse, pluralist democracy
like Australia. It protects individuals who hold moral or religious views from
compulsion. Forcing doctors to refer for abortion – whether directly or indirectly –
undermines our hard-won and precious values of tolerance and freedom of belief
and religion.
This is why it is so concerning that the proposed NSW abortion laws force any doctor with a conscientious objection to abortion to refer patients to a doctor who will perform one.
Those who argue that forcing doctors to refer for abortion is merely about providing access to healthcare fail to understand that the act of referral is no trifling matter for a doctor who believes abortion involves taking an innocent life.
Protesters hold placards during a pro-life rally in Brisbane.Credit:AAP Image/Glenn Hunt.
It must be understood that “referral” is a term of art in the medical field. As the process of referral is linked to the public health insurance scheme it must be made in accordance with the regulations. Under the law, referrals are required to be in writing, signed and dated by a doctor. The referring doctor must consider the need for the referral and provide any information about the patient’s condition that is necessary. Referral establishes a working relationship between the referring doctor and the doctor for whom referral is sought.
In short, to refer for abortion is not a passive step. It is to begin the process of procuring an abortion. Freedom of conscience demands that doctors who believe abortion ends the life of an unborn baby should not be compelled to begin the abortion process.
Unfortunately, other jurisdictions in Australia have already moved to override doctors’ freedom of conscience in the area of abortion. The first state to do so was Victoria in 2008 and it is instructive what has happened to doctors there. We know of two cases where doctors have been subject to investigations for failing to refer for abortion. One case involved a doctor who refused to refer a patient who wished to abort on the grounds that the baby was the wrong gender. In another case, a Facebook conversation involving a doctor who indicated a conscientious objection to abortion was reported to the Australian Medical Board. In that case the doctor wrote in his statement of defence, ''I am unable to refer for an abortion, because reason and logic lead me to conclude it is murder.''
Decriminalising abortion laws in NSW and allowing abortion up to birth will increase the demands on doctors to refer for abortion. This has certainly been the case in Victoria where doctors have been faced with a significant increase in requests to refer for abortion.
The NSW bill is based on the Queensland model, which in turn was based on the Victorian laws, so the situation in that state is a relevant case study. Since abortion was decriminalised in Victoria in 2008, post 20-week abortions have increased by 39 per cent. In Victoria in 2011, for example, an abortion was carried out at 37 weeks and 10 healthy, viable babies of healthy mothers between 28 and 31 weeks gestation were also aborted for ''psycho-social'' reasons. In Victoria between 2009 and 2016, there were 304 babies who were born alive in the abortion process who were then left to die on the operating table.
Violating doctors’ freedom of conscience is also likely to create a number of systemic risks for the medical profession. It is likely to dissuade doctors with a conscientious objection to abortion from remaining in the profession. It may also inhibit medical students with a similar moral persuasion from entering the profession, or certain specialities within the profession. Such an approach risks reducing the access to healthcare for everyone and creating a monocultural medical profession. This is particularly concerning in a deeply multicultural, multi-faith state like NSW.
The proposed NSW abortion laws will have far-reaching effects. The experience of other similar jurisdictions that have gone down this path shows that decriminalising abortion and allowing it to full-term, increases the number of abortions overall. It leads to doctors who are opposed to abortion being potentially subject to disciplinary action when they fail to be complicit in the abortion process because of deeply held, personal views. It likely forces many in the profession to rethink being a doctor and deters others from pursuing a medical career.
Acceptance of a pluralistic argument in favour of freedom of conscience is a powerful commitment to the creation of an Australian society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that comes about when conscience is overridden by state compulsion.
In an area such as abortion, where views are deeply held around the starting point of human life, it is a gross violation of doctors’ human rights to force them to act against their conscience.
Associate Professor Joanna Howe and Professor Suzanne Le Mire are at the University of Adelaide Law School and published in July the article Medical Referral for Abortion and Freedom of Conscience in Australian Law in the Cambridge Journal of Law and Religion.
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