The 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 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.