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Frank Brennan rebuts 'authoritarian' abortion allegations


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.

First: process. If a member of the Victorian Parliament were to introduce a health professionals' bill which dealt with the circumstances in which medical treatment or referrals for same could be denied on conscientious grounds, the member would be required to provide a statement on the bill's compliance with the right to freedom of thought, conscience and belief set out in the Charter of Rights and Responsibilities.

If the measure were not compliant, the member would also be required to provide a statement as to how the measure could be justified in a free and democratic society. And Parliament would then be required formally to override the enjoyment of the right to the extent of the non-compliance.

The Victorian minister on this occasion has said there is no need to do that because the right in question relates to abortion. Any self-respecting civil libertarian ought to support such a process in any jurisdiction which boasts a bill of rights, even one as weak and manipulable as the Victorian one.

Second: substance. If a medical practitioner has a conscientious objection to abortion and refuses to provide one, then the practitioner must 'refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion'. What pray constitutes a conscientious objection to abortion?

Writing to The Age on 25 September 2008, Marilyn Beaumont, executive director, Women's Health Victoria, said that 'a doctor or nurse who has an ethical or religious objection to abortion must provide the name and contact details of a doctor who does not have the same conscientious objection. These doctors are in the majority and not hard to find' (emphasis added).

What of the health practitioner who would contemplate an abortion of a six week foetus but not a 23 week foetus? Does she have a conscientious objection to abortion? What of the health professional who would contemplate the abortion of a 20 week foetus but not of a 28 week foetus even if the child were known to have a severe disability? Does he have a conscientious objection to abortion?

What of the health professional who in some circumstances would abort a 23 week foetus but draws the line when the mother knows the child is healthy but she prefers one of the other gender? Does he have a conscientious objection to abortion? After all under this bill, the woman has a right to choose whatever she likes and for whatever reason up to 24 weeks.

Do the silent civil libertarians suggest that the clause applies only to those doctors who object to abortion in all circumstances, and from the moment of conception? And are those doctors obliged to refer the patient to another doctor known to have no conscientious objection to abortion in any circumstances, up to and including the child's coming to full term?

The clause is completely unworkable unless of course each medical practitioner is to be armed with a comprehensive listing of the views of all other practitioners as to what circumstances and when they would in good conscience contemplate performing an abortion. Presumably such a listing to pass muster would need to be drawn up, or at least approved, by some government regulatory authority. The moral calculus would be quite daunting, and the bureaucratic paperwork overwhelming.

Why aren't the self-respecting civil libertarians happy just to leave the matter to the due application of the AMA Code of Ethics? Why not just leave the law out of the murky area of referrals? Remember that the Victorian Health Services Commissioner remained opposed to the legal referral clause 'on the basis that it duplicated existing ethical standards'.

Why provide a legal obligation to refer to another health professional with a known propensity when this is not done for any other procedure, whether 'elective' or not. Without legal intervention, abortion providers could provide and advertise their own listing of abortionists with ratings of those doctors least and most willing to provide abortion, up to full term if need be.

Mr Barns addresses neither the issue of substance or process. He does raise another issue. He suggests that without this law women will be left to die in Catholic maternity hospitals in circumstances when the removal of the foetus or child would save the life of the mother.

Does he seriously suggest this is happening at the moment in Catholic hospitals throughout Australia? Does he seriously think women will remain at risk in Catholic hospitals in jurisdictions outside Victoria without this new law?

Any Catholic doctor acting in good conscience to save the life of a woman and acting professionally with the requisite specialist skills and certification would remove a foetus or child in utero if the failure to remove the foetus or child would necessarily result in the woman's death. The Victorian bill changes nothing in that regard.

My repeated challenge to all civil libertarians is an invitation to reasoned dialogue about rights and the limits on those rights for the common good and in the public interest. It is all too commonplace for those with an ideological interest in the outcome of such a discussion to label the invitation as an authoritarian edict.

Unless we engage in reasoned discussion about the process and substance of the offending clause 8 of the bill, the outcome will be a law shoddily drawn, overbroad in application, and unworkable — bearing all the hallmarks of unreasoned lawmaking, much like the recent World Youth Day 'annoyance' law struck down by the Federal Court.

 It will be the silent civil libertarians who will be complicit in the Victorian Charter failing its first real test. The Charter will be seen to be not only weak and manipulable. It will be stillborn.

Frank Brennan published Too Much Order with Too Little Law his first book on civil liberties 25 years ago


Topic tags: frank brennan, crikey, authoritarian, totalitarian, victorian abortion legislation



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Existing comments

Good job. Thank you for your work.

Michael Casanova | 29 September 2008  

Fr Frank's comments lead me to think about the word "abortion". It seems to have become rather overworked, as in the present debate (what type of abortion does one have a conscientious objection to?) ranging as it does from very early term termination to 24 weeks and beyond. Adjectival qualification of the word is insufficient to denote the very great differences (moral and physical) between early termination, say, of a pregnant 13 year old and late term termination of a healthy adult. Are the differences great enough to lead us to look for new words, or a legislature to introduce definitions which at least limit the reach of conscientious objection to a particular type of abortion?

Tony Macklin | 29 September 2008  

Thanks Fr Frank. Your rational explanation of a sometimes confusing situation is excellent. I hope that those who will make the final decision are listening.

Rachel | 29 September 2008  

Excellent well done

Patricia vaughan | 29 September 2008  

Weren't these pro-abortion civil libertarian types supposed to be deeply opposed to conscripting people to kill? Or only to conscripting people to kill those who can shoot back?

Rod Blaine | 30 September 2008  

Thank you Frank Brennan for your reasoned arguement. I heard you on the radio on Sunday evening and agreed with what you were TRYING to say over the chatter of others. The whole question does not lend itself to simple answers or even to legalistic solutions.

Rosemary Keenan | 30 September 2008  

Hear, hear, Fr Brennan. Well written. You have the heartfelt compassion and joy filled hope of Christ. Awesome!

Paul Gill | 30 September 2008  

I find it annoying when commentators resort to calling their opponents ‘ideological’. It suggests some arguments and positions are free from ideology while others are tainted and therefore less valid. No argument or position is neutral, unbiased or value-free.

Moving to Brennan’s argument, what he fails to articulate is the importance of the context in which medical practitioners make their decisions about abortion. Ethical protests must be accompanied by a consideration for what a person has the democratic and legal right to ask and expect to receive.

Currently women in Australia have the right to seek an abortion, with different circumstances outlined in the various state laws. While a practitioner has every right to 'object' to providing the abortion, her professional code of ethics and practice standards require that she refer the request to an appropriate colleague. Refusing to do so would lead to a breach or transgression in the professional ethics (AMA Code of Ethics) regarding the doctor-patient relationship.

Such ethical dilemmas are not uncommon within or unique to medicine and it is important to understand how we respond to other potentially contentious scenarios. For example, would this same doctor refuse to give medical attention to, or ‘refer on’, a person involved in a terrorist activity in which they engaged in the planned loss of life? What might a doctor, who maintains an abstinence position on sex before marriage, do if a sexually active woman of 14 requests the Pill?

These scenarios all involve scenarios a potential conflict of personal and professional ethics. My vote is for adhering to personal and professional ethics as diligently as possible - sometimes this requires compromise, rather than an absolutist position. Brennan would do well to look to the work of Levina and Derrida in the importance of 'justice in the moment'.

Angela Frances | 30 September 2008  

What is the purpose of the compulsory referral clause (cl. 8 of the bill)? It is already very easy for a woman in Victoria seeking an abortion to go straight to a provider. I daresay a Google search and a phone call would be all that’s required for a woman to obtain the necessary information. Why bring the conscientiously objecting GP into it at all?

A law which simply left in place the long established protocol of the AMA Code of Ethics would, to quote the words of s. 7(2)(e) of the Charter of Rights and Responsibilities, be a "less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve". Otherwise the purpose is undisclosed and unjustified, and the means unworkable or disproportionately demanding.

So what then is the purpose of cl. 8? Is it simply part of a legislative package aimed at creating the public perception that routine abortion up to 24 weeks is an acceptable social practice? That provides no basis for interference with the right to freedom of conscience. The bill will leave the law out of counselling, cooling off periods, mandatory reporting etc., but it intervenes here in a manner which is completely unworkable and unprincipled.

What is wrong with living in a society where some local doctors will say if asked: "I appreciate that you want to abort now at 23 weeks. I regard the abortion of a viable foetus as an unjustified killing of a human person. You don’t. The State doesn’t. But I do. So please do not ask me to have any part of this. You can contact a provider directly. My being involved neither helps nor hastens your access. But according to my conscience, it implicates me. Let's each exercise our choice with dignity."

What is achieved by prescribing in law that this doctor provide a referral to a provider known not to have the same conscientious objection?

Only once we have some sense of the purpose of cl. 8 can civil libertarians assess the proportionality of the proposed diminution of the right, which is one of the non-derogable rights in the International Covenant on Civil and Political Rights.

Frank Brennan SJ | 30 September 2008  

Angela Frances is happy with the AMA Code of Ethics and so am I. So why not just leave out cl. 8 of the bill? The bill doesn't deal with counselling, mandatory reporting or cooling off periods. So why should it deal with compulsory referrals? I think people such as Angela want to push for clause 8 because it goes well beyond the requirements of the AMA Code. That's the problem.

Frank Brennan SJ | 30 September 2008  

Rally against the Abortion Bill by attending the Pro life rally on Sunday October 5th at 1.45pm at Parliament House, Spring Street Melbourne

catherine | 01 October 2008  

You have focused on the elements of moral debate intrinsic, subtle and universal. You have opened up, to the core, our legal foundations of freedom and justice for all.

I find it sad that we have only recently moved to oppose the rights of fathers to have absolute rights over their families and privacy (domestic violence now criminal + civil offences). The privacy and absolute right of a woman is still upheld.

We are living in savage times,with society allowing killing of any human form. This has influence on IVF, and the selective process involved in genetic engineering. We risk loosing our planet and humanity, if we have no protection of life in all forms.

Catherine Saniga | 02 October 2008  

On 9 September 2008, Liberty Victoria issued its only press release on the bill stating, “The Abortion Law Reform Bill should be passed without amendment.” Then writing in The Age on 24 September 2008, Anne O’Rourke, the vice president who has had the public carriage of the issue for Liberty Victoria claimed that the conscientious objection clause was “consistent with the Australian Medical Association's code of ethics”. She went on to say, “To claim the Abortion Law Reform Bill breaks new ground or imposes unprecedented obligations on hospitals or medical staff is wrong and misleading. The bill does not do so.”

Liberty Victoria’s public position is in stark contrast to the position taken by the AMA. In his letter to the Victorian Premier, Dr Doug Travers, the President of the AMA (Victoria Branch) pointed out that doctors are "not currently forced to provide a service they believe to be unethical or immoral". He acknowledged that "the existing common law and existing codes of conduct require that a doctor with a conscientious objection to a particular service inform the patient of that conscientious objection and … ensure that the service is available elsewhere". But he pointed out that the proposed legislation goes beyond this: it "infringes the rights of doctors with a conscientious objection by inserting an active compulsion for a doctor to refer to another doctor who they know does not have a conscientious objection. Respect for a conscientious objection is a fundamental principle in our democratic country, and doctors expect that their rights in this regard will be respected, as for any other citizen".

This is the crunch issue. Some civil libertarians claim cl 8 does not go beyond the AMA Code of Ethics. If that be their position, why not agree to the omission of cl. 8? If they concede that it goes beyond the scope of cl. 8, why conduct a campaign for cl 8 on the basis that it effects no change?

Any true civil libertarian should take the position that cl.8 be omitted from the bill, and that any replacement be considered in future legislation which must comply by way of process and substance with the provisions of the Victorian Charter of Rights and Responsibilities.

Frank Brennan SJ | 02 October 2008  

The physician, any physician's, "right" is to do no harm!

folkie | 06 October 2008  

Excellent response. i await reply or statement from civil libertarians.

margaret G | 06 October 2008  

I am unfamiliar with this Levina, but the name bears some resemblance to Emmanuel Levinas, a refugee from Nazism who wrote that we owe an irreducible ethical obligation to others in need, irrespective of whether we have created their situation of vulnerability. Hard to imagine a philosopher whom the ProCho advocates more desperately need to read.

Rod Blaine | 07 October 2008  

A doctor conscientiously studying the research on psychological problems (most women suffer at least some) , even severe illness (10-20%) to conclude that abortion is ultimately harmful rather than helpful.Is that a conscientious objection? Should he simply refer a woman on even though the doctor is convinced that abortion is likely to harm the woman, perhaps especially because she has indicated strong ambivalence, appears to be pressured by her partner, and perhaps has had some depression. Evidence suggests such are strongly linked to elevated risk for significant, ongoing, disabling psychological problems . Do we actually care about women suffering these problems? If the doctor cares enough, he is likely to be persecuted under this Bill if he has the courage to act on his knowledge to take no step that would facilitate the abortion. If a 15 year old girl comes seeking a referral for plastic surgery to fix her "ugly" face, should a doctor make an "effective referral" to a cosmetic "surgeon" even though the girl is obviously pretty but suffering body image problems? Some participants in this debate need to grow up. Abortion or any medicine on demand is unethical and ultimately ceases to be medicine.

angela | 07 October 2008  

Catholic hospitals would have to close and I think be sold to developers who would redesign them into apartments. The government would have to build new hospitals. Catholic hospitals cannot continue if their staff cannot work in accordance with their conscience and Catholic values.

Katrina Haller | 08 October 2008  

The opinion by Neil Young QC on clause 8(1) of the bill is very compelling. No one reading that opinion could make the mistake made by Steve Bracks who has now said, "I can see no problem in codifying what already exists and is in operation currently, and that's really what's before the Parliament". If that was really what was before the Parliament, there would be no problem over conscientious objection and compulsory referrals. So why not use the Bracks test: Approve only those clauses which codify what is already the situation and practice; Amend or omit the rest. On the Bracks test, the Parliament should omit Cl 8(1) and continue to have all Victorians rely on the AMA Code of Ethics. One bonus of this for all Victorians would be that Catholic hospitals could continue delivering the highest level quality health care without undue State interference, just like they do now.

Frank Brennan SJ | 08 October 2008  

Thank you Angela Frances for introducing some social context into this topic. If those who oppose women's right to make decisions in the interests of our families and ourselves, put the same energy into defending human rights of people everywhere, we may have been able to stop the needless slaughter and suffering of millions in countries like Iraq.

Anna McCormack | 10 October 2008  

Congratulations Frank. Do you think that it might have helped to explain the 'law of double effect' as it applies to 'removing the foetus or child'?

Claude Rigney | 11 October 2008  

Thank you for your deep belief in human dignity at every position in society. We have come along way since european settlement on australian soil, and yet we have not moved ahead in creating a free and just society. Without a treaty with the original custodians we are free-loaders; now still pillaging mineral tracts and applying european farming methods to the driest continent.

We have not seen indigenous people (titled flora & fauna for most of this time) or their wise ways. They, like ancient Israelites have a deep well-spring to nourish and protect them. They will lead us in living spiritually and saving our garden of eden.

You, along with many Miriam-Rose in Naiuiyu and other wise "educated" elders are the only hope of salvation. ANTaR needs help to bring a Treaty to this sorry land.

Catherine Saniga | 17 October 2008  

Ms McCormack, our "right to make decisions in the interests of our families and ourselves" does not extend to a "right" to arrange or agree to the killing of any family member whom we deem "unwanted".

Ronk | 20 October 2008  

How do we judge civilization?Levels of technical mastery and degrees of social sophistication?I'm afraid decriminalising abortion as a part of a sophisicated health system will be the excuse for euthanasia,selective breeding and genetic engineering for the eradication of disability...We have the technical (tools),yet we have not developed a close relationship with the natural order ( law )We have no respect,and time will tell.There are warning signs now..

catherine Saniga | 06 November 2008  

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