Totalitarian abortion law requires conscientious disobedience

Archbishop of Melbourne, Denis HartThe abortion debate has produced a stand-off in Victoria over church-state relations and freedom of conscience. It is time to seek a resolution which respects the long-held conscientious beliefs of some health providers within the context of the proposed state regime approving abortion on demand.

The lower house of the Victorian parliament has passed a bill which treats abortion of a foetus up to 24 weeks as an elective surgical procedure. There is no legal requirement ensuring a woman has had sufficient time and opportunity to make an informed and free choice to have an abortion. Any doctor can perform the procedure.

Even a viable child can be aborted post-24 weeks at the mother's request provided only that the doctor has received endorsement from a colleague that the killing of the child is appropriate having regard to 'all relevant medical circumstances and the woman's current and future physical, psychological and social circumstances' — whatever that means.

Usually, doctors considering the performance of an elective surgical procedure are free to decline to perform the procedure. Declining doctors asked to perform an abortion will be required by law to refer the patient to another doctor known not to have any conscientious objection to abortion.

Some doctors think abortion is almost always wrong; others think it is almost never wrong. Some hold the conscientious belief that the abortion of a viable foetus is the deliberate killing of a child. They think they will be asked to refer a patient to another doctor just for the purpose of killing a child. Such doctors would regard this as being legally required to cooperate in an act that they consider immoral.

The Victorian bill also proposes that doctors and nurses, regardless of their conscientious objections, be required to perform an abortion 'in an emergency where the abortion is necessary to preserve the life of the pregnant woman'.

One third of all births presently occur in Catholic hospitals. The Catholic Archbishop of Melbourne, Denis Hart, has said, 'Catholic hospitals will not perform abortions and will not provide referrals for the purpose of abortion. If this provision is passed it will be an outrageous attack on our service to the community and contrary to Catholic ethical codes. It will leave Catholic hospitals and doctors with a conscientious objection to abortion in a position where they will be acting contrary to the law if they act in accordance with their deeply held moral convictions.'

If Victoria is to legislate abortion on demand, there is a need to consider whether all health professionals ought to be conscripted into such a regime. Has the legislature got the balance right here? Presumably the legislators assume the majority of health professionals will have no ethical or moral objection. The issue is whether the minority of health professionals who do have such objections should be forced to act against their conscience.

One would have thought that the Victorian Parliament, armed with its freshly minted Charter of Rights and Freedoms, would have the appropriate machinery at hand to find that balance. After all, the Charter guarantees freedom of thought, conscience, religion and belief. The Charter does permit parliament to override prescribed freedoms in rare circumstances.

However Professor George Williams and his fellow proponents of the Charter were 'strongly of the view that it would be inappropriate to use the override clause to sanction a breach of important rights such as freedom of conscience, thought and religion'.

They did not tell us that such rights could be overridden without need for an override or even without need for parliament to consider the impact of proposed legislation when those rights could 'interfere' with the right to abortion on demand.

When introducing legislation into the Victorian parliament, a minister is required to provide a compatibility statement outlining how the proposed law is consistent with the rights and freedoms set down in the Charter. Introducing the abortion bill, Ms Maxine Morand, the Victorian Minister for Women's Affairs told Parliament:

In accordance with section 48 of the Charter of Human Rights and Responsibilities, a statement of compatibility for the Abortion Law Reform Bill 2008 is not required. The effect of section 48 is that none of the provisions of the charter affect the bill.

This includes the requirement under section 28 of the charter to prepare and table a compatibility statement and the obligation under section 32 of the charter to interpret statutory provisions compatibly with human rights under the charter.

Section 48 provides that 'Nothing in this Charter affects any law applicable to abortion or child destruction'. It was included in the Charter to accommodate the concerns of Professor Williams and his colleagues that the Charter not purport to resolve the question of when life begins for the purposes of defining the right to life.

The Williams committee stressed that such a provision was 'not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.'

They made what must now be seen by their political masters to be a remarkably misconceived observation: 'In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.'

Unless the Victorian upper house acts to amend those provisions of the bill which presently negate the freedom of thought, conscience, religion and belief of health professionals, the matter will need to be resolved by the courts.

Meanwhile the Catholic hospitals and conscientious health professionals opposed to abortion on demand are well justified in taking their stand against an unjust law which carries the hallmarks of totalitarianism. Any self-respecting civil libertarian should support them, regardless of their views on the morality of abortion on demand.

Frank BrennanFrank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University and Professorial Visiting Fellow, Faculty of Law, University of NSW.


Topic tags: brennan, victorian abortion legislation, catholic hospitals, Catholic Archbishop Melbourne, denis hart



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Existing comments

How anyone could refuse an emergency procedure to save the life of a pregnant woman on the basis of an 'ethic of life' is beyond me.
Justin | 24 September 2008

Frank your articles are always worth reading. Keep up the good work. Pax!
Sister Doris Nebauer | 24 September 2008

Frank: your argument sounds odd to me. Many practitioners consider it a woman's right to decide about early abortions and their professional duty to assist. Catholic Church authorities try to retain or introduce laws against their doing so. Have you called such laws "totalitarian" attacks on consciences? Would you call a law totalitarian which obliged a JW doctor who will not give blood transfusions to refer patients to other doctors who might?

At the least, doctors who refuse to offer certain services or to refer to others who will should make this very clear from the start, so they are not consulted. Several abortions end up late term because women are not referred by doctors (except to other anti-abortion doctors), and their concern (in conscience) to hinder abortions is not matched by their honesty to the women about their position. The solution to the doctor's conscience problem might be to make it compulsory for doctors who intend to refuse such services and referrals to be honest about this from the start. Or is that too forbidden, as making it easier for women to know who might (rightly or wrongly) give them the kind of help they want?

john fox | 24 September 2008

Hi Justin

see that is just the problem with the Bill. Most surgeons and theatre nurses will tell you that the death of the foetus that results from saving the woman's life during an emergency is not called an abortion - either medically or according to Medicare Item classification. It is called foetal death in utero. This legislation is leaving the determination of 'emergency' up to the surgeon - and in the medical sense, there are only a minor percentage (possibly less than 1%)of occasions when a true abortion is required to save the mother's life. Most of these relate to oncology and auto-immune disease where the growing baby compromises the health of the woman.

I hope that this provides some clarity of why many health professionals are against this legislation, not just because of moral objections - but because the terminology used and the directives it enforces are not representative of the actual nature of current medical practice.

Joanne | 24 September 2008

Abortion stops a beating force a doctor to kill a living baby within the womb at six months or more is inhumane...a totalitarian law. How can this happen in Australia? All caring human beings must take a stand against this.
Sue Hallam | 24 September 2008

Ah yes, of course it's totalitarian to expect a doctor to come to the aid of a woman whose life is in danger as opposed to submitting to the whims of Church dogma. (Did someone mention the word 'authoritarian'? That's the pot calling the kettle black.)
Jobby | 24 September 2008

The question of when life begins does not have moral aspects. It is a purely scientific question. If a creature is alive, its life must have begun, and an examination by a scientifically competent person can determine whether it is alive or not.

A reasonable definition of life in this sense — living as opposed to non-living — would seem to be: 'Life is the ability to take in nourishment and metabolise it to produce growth and other activity (as appropriate to the particular life form)'. Given a definition like this, it follows that life begins at conception, (or germination, or whatever).
Gavan Breen | 24 September 2008

Section 48 of the Charter is not the product of the Williams Committee. They recommended following the ACT approach of only limiting the right to life (to the born). This would have preserved the requirement for the Minister to give a statement of compatibility and the potential for the referral clause to be tested in court. The unfortunate Charter s. 48 was instead the product of unknown meddlers within the Victorian government who altered the Committee's bill before it was presented to parliament.
Jeremy Gans | 24 September 2008

The conscience clause debate has arisen because of the sloppy reasoning
adopted initially by the Victorian Law Reform Commission and the slight of
hand of the legislative draftsman. The Commission accurately quoted from
the AMA’s Code of Ethics which provides:

[W]hen a personal moral judgement or religious belief alone prevents you from recommending some form of therapy, inform your patient so that they may seek care elsewhere ...

Recognise that you may decline to enter into a therapeutic relationship where an alternative health care provider is available, and the situation is not an emergency one.

Recognise that you may decline to continue a therapeutic relationship. Under such circumstances, you can discontinue the relationship only if an
alternative health care provider is available and the situation is not an
emergency one. You must inform your patient so that they may seek care

The Commission then went on to state:

Our terms of reference require us to ensure the maintenance of current clinical practice standards. If legislative provision is made for people who have a conscientious objection to providing abortion services, the content of any new law is best guided by the principles contained in the AMA Code of Ethics. That code requires medical practitioners to inform patients of their refusal. The code also requires practitioners to provide women with sufficient information so they may seek and find treatment elsewhere. This simple rule provides an appropriate balance between the needs of the practitioner and the patient.

Then in the next paragraph, with no additional reasoning provided, they make the quantum leap to recommend a novel step which is not consistent with “current clinical practice standards” and which is completely at odds with the AMA Code of Ethics, namely that a conscientious objector be compelled by law to “make an effective referral to another provider”. The AMA Code simply provides that a conscientious objector may decline to enter into a therapeutic relationship in the first place. Even if the conscientious objector has already entered a therapeutic relationship, he or she may make a dignified withdrawal leaving the patient free to seek out another doctor. There is absolutely no obligation in the AMA Code for the conscientious objector to do anything further. The Code does not require the medical practitioner actually to make a referral. It is for the informed, self-determining, autonomous patient to “seek care elsewhere”.

It gets worse. The legislative draftsman then, without any recourse to the provisions of the Charter of Rights and Freedoms, extends the VLRC recommendation or interprets an effective referral to be referral to another doctor “who the practitioner knows does not have a conscientious objection to abortion.” Presumably doctors would be required to keep a register of their colleagues’ moral beliefs. Perhaps the government will need to provide them with a loose leaf service of regular updates.

The Age, which has been constantly pro-abortion on demand, declared in today’s editorial: “If the Government sincerely wants the law to reflect community attitudes, it should omit that section (the conscience clause) from the bill, or revise it appropriately.”

Hear! Hear! After all such an omission would ensure compliance with the AMA Code of Ethics as applied to all other elective surgery which the Victorian Parliament will now deem abortion to be.
Frank Brennan | 24 September 2008

Calling this legislation 'totalitarianism' is unnecessary hyperbole that detracts from Fr Brennan's argument.

And Joanne: you're saying medicos oppose this because the wording is inexact? That seems like a poor reason to get this upset. Also, it may only be 1%, but here we have the Church saying that in that 1%, the woman just has to die (and the foetus with her). How exactly does that promote the sacredness of life?
Justin | 24 September 2008

By the way, it's not called the "Charter of Rights and Freedoms". That's Canada's. Victoria's has the Orwellian name "Charter of Human Rights and Responsibilities". Alas.
Jeremy Gans | 24 September 2008

The introduction into the Victorian parliament of the Abortion Law Reform Bill 2008 highlights the need for Parliaments throughout Australia to define the Rights of citizens of Australia and to clarify when a person becomes a citizen. The existing provision of the law that a person is not recognized as a juridical person until that person has been born is inadequate to protect the rights of the unborn at the present time. During the abortion process if a foetus is delivered "live" and, in effect, dies after delivery is the person performing the abortion then a murderer in the eyes of the law?
Bernard Edwards | 24 September 2008

If a moral certainty 'rests upon convincing grounds of probability'. The convincing grounds of probability in respect of the humanity of a newly conceived foetus is that it is human. To speak in terms of the morality of abortion other than to declare it immoral is, to say the least, dissembling.
Claude Rigney | 24 September 2008

Frank's points: well urgently made saying informed conscience is vital. However they lack urgent implementation, given Cardinal Pell has already strangely publicly ditched primacy of even informed conscience in His Eminence's Cambridge 2003 address!

On this basis, the public now believe Catholics under Pell (at least Australian Catholics) are not allowed to have informed conscience on, only absolute obedience to, Church teaching on single issues without critical balance of all contributing informed/ing factors, including central teachings of God's love and especially humanity's origin, life and destiny in God.

So if Frank can persuade Pell to return to the perennial Catholic teaching of informed conscience on all issues/teachings, then Frank may also be able to persuade the public, especially politicians, the Catholic faith ethical position is conscientiously informed by balanced reasonable process, evidence and expertise accessible to all, and is not just an appeal to an 'authority' not recognised by so many.

This way religion and politics etc can work with most respect for their agreements,differences and seek to maximise resolution of these wherever possible using informed conscience, especially on urgent life issues.

Vatican II states: Reasonable experiential expertise speaks to all always! and can lead to faith also in God and religion!
Xavier Francis | 24 September 2008

excellenty presented. What is our nation coming to when it allows the killing of children at younger and younger ages for parental convenience.
sean parnell | 25 September 2008

Very few women die as a result of pregnancy. in Australia the stats over a three year period in the 1990s were approx 15 per 100,000 so i think that 10 plus years later the maternal deaths would be even lower. The catholic church opposes direct abortions, that is aiming at killing the baby. Catholic doctors try their best to keep the baby alive, whilst trying to save the mother. e.g. in an ectopic pregnancy they can remove the fallopian tube containing the embryo/fetus and this is not considered a direct abortion.
Patricia | 25 September 2008

Re: Victorian Abortion Law.

Fairly simple solution in Law 24 weeks gestation is absurd and must be removed. Except in cases of accidents in which case a woman's life should be paramount. Leaving morality out of the abortion debate, 12 weeks at most left for choice. When life begins no one can agree on, when the soul enters no one knows. When laws are made common sense should not be excluded.
Ilona Goor | 25 September 2008

Everyone Be Pro-Love! not just either Pro-Life or Pro-Choice!
Steimelbergen | 26 September 2008

Well the abortion law reform is the ulitmate reflection of the 'Me Me Me' society.

I am so grateful to Dennis Hart for taking a strong leadership position finally. The common good is being eroded from our society with legislation like this, and I feel strange about living in this society where it is happening.

The church has every right to state they cannot be part of this and services will be stopped if this law reform goes ahead.

I think it's made us all realise how important Catholic Health is to the fabric of our society and we will be far worse off without it in our community.

Robert Allen | 26 September 2008

A Queenslander so have not been following the debate but----While I am not pro abortion I do compassionate the circumstances under which some women find themselves with "no choice" and so they should not be living under laws that make them criminals.Mystifiies me that we catholics have a highly developed just war theory but not a just abortion theory. Now as a Christian I do not require the state to impose my beliefs on others where there is no moral consensus. I am grateful for people like you Frank who can analyse the law and hold our lawmakers at least to comply with civil and human rights. One wonders what is going to be the situation in states where we have not a charter protecting rights and freedoms? As an aside might not George Pell be wise to revisit his understanding of how the Catholic Church views the primacy of conscience given the pending gloom of "near totalitarianism" in our laws or does he live under the illusion Catholic laity will pay and obey? Another thought Are my sister feminists happy to give this much power to the experts without informed consent from the woman involved in an emergency abortion.
Cath | 26 September 2008

Excellent article.

Two points re law. I am horrified to learn ANY Doctor is allowed to perform abortion on 24 week pregnancy. Regardless of ethics or morals this is a task for specialist Obstetrician or Gynaecologist. At very least this clause must go and any abortion over 13/52 should be specialist, 2 opinions and lifesaving.

Re other points made by Fr Brennan ie Drs being compelled to refer to another Dr who will perform an unacceptable operation. eg unrelated to pregnancy, one (ie I) would never refer to another and request operation of which I disagreed. For example amputation of a limb until time and All alternatives explored and patient has advice and time to consider the outcomes. My point being this law is contrary to best medical practice regardless of ethics/morals/religious beliefs or outcome for foetus although the latter is a particular and special case.Surely AMA cannot accept this nor Civil Rights activists.

I Hope Fr Brn will be at Nth Stdney soon or discuss further per email.
margaret gillies MBBS FRACP | 29 September 2008

Crikey contributor Greg Barns has alleged that I have issued an authoritarian edict regarding the Victorian abortion bill. I have done no such thing. My still unmatched challenge to civil libertarians, including those who support abortion on demand, is to consider the questions of process and substance relating to the bill's application to a medical practitioner's right not to provide a pregnant woman with a referral to an abortionist.

Read the rest of Frank Brennan's response to Greg Barns here
Frank Brennan | 29 September 2008

I'm concerned that people may think that if the Bill got amended and medical practitioners were able to withdraw from patient's care, that the main thrust of the Bill, which is to strip the unborn of basic legal protection, is going to be missed.

Why is it that we can live in a society that trumpets 'equal rights' and 'fairness' but refuses to extend the most basic of protections to the unborn? Equal rights? Women's rights? Choice? LOL. Not for the unborn. They can be killed without notice.
Mark Rabich | 30 September 2008

Dear Frank
I agree with the position that you have taken on the need to oppose mandatory referral. This legislation does negate one of the important individual freedoms. I hope you are successful.
justin o day | 11 October 2008

Cath, be mystified no longer. Whilst there can be, at least in theory, a just war in order to prevent or stop an even greater evil than the war (e.g. murders committed by an aggressive and murderous State or organisation), there can never even in theory be a "just abortion". An innocent helpless baby is not armed and threatening to murder anyone!
Ronk | 21 October 2008

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