(This guest blog post was provided by Dr Alex Deagon, FHEA, Senior Lecturer, Faculty of Law, Queensland University of Technology.)
On 17thOctober 2018 the Queensland Parliament passed the Termination of Pregnancy Bill 2018 (Qld). This law will, among other things, allow abortion on demand up to 22 weeks’ gestation, and abortion up to full term if approved by two independent doctors who agree it is appropriate taking into account all the circumstances. Setting aside for one moment the significant objections to the primary function of this legislation in general, a major point of contention with the bill was the extent to which health practitioners are able to refrain from providing abortion services because they have a conscientious objection.
Conscientious objections in this context are not merely idle and whimsical. For example, many Christians disagree with abortion because they deem it to be the intentional killing of a developing human person, a unique, special creation of God with a future and a purpose. This is founded on biblical ideas such as that found in Psalm 139:
For you formed my inward parts;
you knitted me together in my mother’s womb.
I praise you, for I am fearfully and wonderfully made.
Wonderful are your works;
my soul knows it very well.
My frame was not hidden from you,
when I was being made in secret,
intricately woven in the depths of the earth.
Your eyes saw my unformed substance;
in your book were written, every one of them,
the days that were formed for me,
when as yet there was none of them.
For those who are not Christian or religious (and, of course, for many who are), they may also have a deeply and sincerely held view of the intrinsic personhood of the unborn based on both emerging and accepted medical evidence, including foetal heartbeat, brain and sex development, and human-like reaction to stimuli well before 22 weeks’ gestation. Even if one concedes abortion should be explicitly made legal, these objections are powerful and principled and ought to be properly taken into account.
Deputy Premier Trad and other proponents of the legislation claim conscientious objections are taken into account through section 8, which provides:
Registered health practitioner with conscientious objection
(1) This section applies if—
(a) a person asks a registered health practitioner to—
(i) perform a termination on a woman; or
(ii) assist in the performance of a termination on a
(iii) make a decision under section 6 whether a termination on a woman should be performed; or
(iv) advise the person about the performance of a termination on a woman; and
(b) the practitioner has a conscientious objection to the performance of the termination.
(2) The registered health practitioner must disclose the practitioner’s conscientious objection to the person.
(3) If the request is by a woman for the registered health practitioner to perform a termination on the woman, or to advise the woman about the performance of a termination on the woman, the practitioner must refer the woman, or transfer her care, to—
(a) another registered health practitioner who, in the first practitioner’s belief, can provide the requested service and does not have a conscientious objection to the performance of the termination; or
(b) a health service provider at which, in the practitioner’s belief, the requested service can be provided by another registered health practitioner who does not have a conscientious objection to the performance of the termination.
This section requires a health practitioner with a conscientious objection to providing an abortion service to disclose their objection to the person seeking the service and refer the person or transfer her care to a health provider or practitioner who the first practitioner believes can provide the service because they do not have such an objection. It is worth noting the positive aspect of this provision. The concession is important, in that it does not directly compel a medical practitioner to provide an abortion service or to participate in an abortion.
However, for a medical practitioner with a genuine conscientious objection as described above, this provision is not much of an improvement over direct compulsion. It still compels complicity on the part of a registered health practitioner by forcing them to participate in a termination through compulsory reference. If a practitioner believes the alternative provider can provide the service and the alternative provider does not have an objection (as the practitioner is required to do in order to refer), then the practitioner must necessarily have the belief that the alternative provider will most likely provide the abortion in their stead. In other words, this provision renders a practitioner with a conscientious objection directly complicit in the abortive action. The provision compels them to be part of the very process they object to. A genuine provision for conscientious objection would allow a health practitioner to completely abstain from the process.
This compulsion is justified on the basis that the conscientious objections of practitioners should not prevent access to abortion services, particularly in rural areas. In the unlikely scenario where the only available health practitioners have conscientious objections, at best it is questionable whether the ‘right’ to access an abortion service outweighs the much more deeply entrenched human right of freedom of conscience. In most circumstances, it will be simple enough to go to another practitioner without requiring the first practitioner to refer the patient to a practitioner they believe will perform the abortion. Moreover, many nurses and doctors have stated that their representative organisations did not consult them when supporting the legislation. Some have said that they will not be able to continue practicing medicine if legislation like this comes into force. If such legislation forces competent and genuine health practitioners out of the profession on the pain of violating their conscience, it is unlikely the correct balance has been struck.
There is a further, potentially even more significant problem with the conscientious objection provision which has not been canvassed at all in public debate. The conscientious objection does not extend to hospitals or institutions. This followed the Recommendation to this effect from the Queensland Law Reform Commission Report (at 4.149) on the basis that “freedom of thought, conscience and religion is a personal and individual right”. The subsequent Health Committee Report followed this exactly at 6.7.2, despite my submission to the contrary. The QLRC did not provide any argument or evidence to justify their claim.
It is unfortunate that the QLRC did not engage with this issue properly. It is well accepted that, in fact, freedom of thought, conscience and religion is a group or associational right as well as an individual right. As Article 18 of the International Covenant on Civil and Political Rights clearly states:
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.
Furthermore, though Section 116 of the Australian Constitution does not technically apply as this is a state law, as I have argued elsewhere the High Court has consistently held the provision extends to protect both religious groups and religious individuals. Therefore, conscientious objection should be extended to allow institutions to conscientiously object to providing abortions. Not doing so could have major implications for religiously based hospitals which conscientiously object to providing abortions. As I discussed earlier, by their nature these objections are deeply founded and rooted in fundamental beliefs and principles. They cannot be changed or abrogated simply because political expediency might demand it. Hospitals in this position will find themselves choosing between violating their conscience as an institution or closing their doors. As with individual health practitioners, not only is this a problematic outcome in a diverse society, it will actually have a detrimental impact on people seeking health services. Less religious hospitals means less hospitals, and less hospitals means less access to health services generally. This, in fact, would have a much more devastating impact on vulnerable women seeking health services compared to simply allowing such hospitals the option of declining to perform abortions.
For individual healthcare practitioners, this law does not get the balance right between conscientious objection and provision of healthcare services. It compels practitioners to participate in the abortion process against their conscience when this is not necessary to achieve provision of the service. For health providers which might have conscientious objections at an institutional level, there is no balance at all. The lack of protection stems from the faulty premise that freedom of thought, conscience and religion is merely a personal and individual right. It is hoped that, upon further reflection by Members of Parliament and the public, amendments to the legislation to properly protect conscientious objection will be forthcoming.