Except for a small article in Quadrant magazine, authored by Victorian Liberal Senator Julian McGauran, the first anniversary of the Victorian Abortion Law Reform Act passed quietly this month. While abortion is often seen as a divisive moral issue Australia has avoided the open societal conflict that has so troubled the United States. Quite rightly Australians tend to take the view that abortion is a decision for a woman in consultation with her doctor.
The Victorian legislation, however, has broken that nexus. The law goes beyond simply legislating the common law position — a position that has broad community support. Section 8 of the legislation undermines the community expectation that women consult with their doctors and requires doctors to either participate in the abortion process or recommend a doctor who will do so. The text of the section is reproduced below.
8: Obligations of registered health practitioner who has conscientious objection
(1) If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—
(a) inform the woman that the practitioner has a conscientious objection to abortion; and
(b) 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.
Senator McGauran refers to section 8(1) as the Henry VIII clause — it demands active support not just silent acquiescence — but 8(1)(a) is unremarkable. It is difficult to imagine that doctors with a conscientious objection to abortion wouldn’t say so. But at the same time, it is difficult to imagine that doctors wouldn’t advise their patients to the best of their professional ability. Section 8(1)(b) is very problematic. A woman no longer consults with her doctor; she demands a medical procedure or doctor-hops on the advice of her doctor.
That is the policy design — the Victorian Parliament has deliberately created this structure. Yet it is not clear that public policy should ever encourage doctor-hopping in this or any other medical issue.
The bigger problem with 8(1)(b) is that it is an attack on freedom of conscience, freedom of religion, and constitutes conscription. It is a violation of section 116 of the Australian Constitution that forbids the establishment of religion, or the prohibition of religion. Not only is section 116 contained in that that portion of the Constitution dealing with the States, but the Commonwealth finances the public health system.
Australia is a signatory to the Universal Declaration of Human Rights.
Section 18 of that declaration sets out the freedoms of thought, conscience and religion. The Commonwealth could use its external power to overrule the Victorian legislation. But quite frankly, why should Victorians look to the Commonwealth to overrule bad law? Why shouldn’t we look to our own parliamentarians to be sensible?
The most astonishing thing about the Victorian legislation is that our parliamentarians gave themselves a conscience vote while overriding the consciences of doctors. This extraordinary act of arrogance is simply unacceptable. We can speculate on what they were thinking, or even if they were thinking. The notion that the parliament is the final arbiter of personal morality and conscience is an extraordinary danger to a free society. This legislation doesn’t just legalise abortion it also silences dissent.
Sinclair Davidson blogs at Catallaxyfiles, these views are his own.
“The bigger problem with 8(1)(b) is that it is an attack on freedom of conscience, freedom of religion, and constitutes conscription.”
Anyone reading the actual clause can see that the above statement (and many others in the article) is nonsense. Doctors are not compelled to give up their religion or religious beliefs. Nor are they required to perform a procedure or even refer the patient for a procedure which is against their religious beliefs. Merely to refer the patient to someone who does not share the same conscientious objection.
Just to be clear, this clause DOES NOT force doctors to refer women for abortion.
It requires them to refer their patient to a doctor who will provide objective information on all options so that the patient can make an informed decision. One that is based on unbiased information and their own circumstances, not one based on someone else’s belief system.
I was typing a longer comment when Jenny’s came up. She sums it up well.
I would only add that Davidson’s argument presupposes that the provision’s tangential engagemnt with a doctor’s freedom of conscience overrides a woman’s right to exercise control over her own body … a priority with which I disagree.
One would assume that reason behind sections 8(1)(a) and (b) is to protect the doctor against a later claim of medical negligence through a failure to treat. If a doctor complies with section 8(1)(a) and then refers the woman to another practitioner under section 8(1)(b) then the doctor cannot later be held responsible for a medical injury sustained by the woman as a result of the pregnancy or abortion.
As for the Author’s reliance on the section 116 of the Australian Constitution I am afraid he has mis-read the case law on this section. We do not have an ‘Establishment clause’ ala the 1st Amendment to the United States Constitution. Rather, the High Court has held that the government can conscript a citizen to fight, notwithstanding their religion’s prohibition on violence. Likewise, in the DOGS case the High Court held the Commonwealth can fund private religious schools and not fall foul of section 116 (as opposed to the US where such actions would violate the Establishment clause). Only where the Commonwealth actually prevents a person from practicsing their religion – rather than merely force them to do something contrary to a relgious tenant – is the action likely to be unconstitutional. (I don’t support such a narrow reading of section 116 but, without a referendum on the issue, there are only 7 people in Australia who can change the situation).
Indeed, the High Court has said repeatedly that section 116 only prevents the Commonwealth establishing an official religion (but it can support, or not support, one or more existing religions); it cannot impose a religious test on APS employees (although morning prays in Parliament are OK).
So, contrary to the Author’s views, the Commonwealth (or Victoria) can certainly compel a doctor to recommend another doctor willing to perform an abortion and not fall foul of section 116.
If the Author is looking for a way to prevent a government from forcing doctors to perform or recommend abortions he is looking at the right document but the wrong section. Section 51(xxiiiA) prevents the ‘civil conscription’ of doctors and dentists (and perhaps nurses). However, the prohibition only extends to the Commonwealth and, as this is Victorian legislation, there is little room to challenge the legislation.
And, finally, the common law position is a mess, not an ideal. It is different in NSW, QLD and, until recently VIC. There is no settled precedent and the High Court could, if a case on abortion came before it, set abortion law back 40 years in those states which have no legalised abortion.
[And, for those who oppose a federal charter of human rights, you cannot call upon a right to freedom of conscious or speech or thought. They aren’t protected nationally].
See the Democrats’ proposed family-planning laws a few years ago, which I think found a better ethical balance. Their proposal was that any advertisements by clinics which objected to abortion had to say up front, “We do not provide abortion services”. Nothing about having to refer clients to another clinic that does.
What a joke. I can stomach Davidson masquerading his exaggerated libertarian politics and IPA shilling as economic received wisdom regularly on Crikey. But at least that’s his chosen field and he can occasionally make empirically valid points amongst the agitprop. But this is such a fluff, disingenuous article. I’ve read some howlers before from conservatives purporting to invoke the aspiration and content of universalist human rights instruments they neither believe in nor understand, but this takes the cake.
Why not simply come out and say you oppose abortion. Nobody could serious suggest referral to a doctor is a violation of s116, and it is doubtful the High Court would accept that enlivening of the external affairs power in this context. What happened to the libertarian commitment to localised decisionmaking anyway or parliamentary sovereign over and above the new world order. Just shows you what a fake Davidson is…