Abortion in Australia is governed by varied state-based laws. Despite the clear requirement for doctors with conscientious objection not to block access to abortion, this aspect of some state laws has recently been challenged.
The Bill at the heart of the tussle is the 2008 Victorian abortion law reform, which was recently mirrored in Tasmania’s abortion law reform. Victoria’s abortion law is widely seen as legally and socially successful.
In the firing line
In both the Tasmanian and Victorian legislation, doctors with a conscientious objection to abortion are legally required to provide women with a list of practitioners offering a “full range of pregnancy options”, including termination.
But this clause in particular is under fire in Victoria, where a doctor with a conscientious objection to abortion is being investigated by the medical standards body for not following the requirements of the state’s abortion legislation.
And Victorian Premier Denis Napthine indicated on Monday that he would consider “on merit” any move to wind back the state’s abortion law.
Both laws have sought to position abortion as a clinical, rather than criminal issue (as it previously was), and ensure women have access to legally permissible termination.
But the clauses requiring doctors to refer women to others when they have a conscientious objection have been criticised by some as impinging on the autonomy and human rights of practitioners who hold a moral objection.
The Australian Medical Association, for instance, argues the clauses undermine doctors’ moral judgement or religious beliefs.
Understanding the debate
Abortion is a complex issue, and individual health practitioners, like other people in the communities they serve, hold a broad range of personal beliefs about its ethical acceptability.
Most individuals hold these beliefs privately. But a problem arises when doctors use personal beliefs to justify withholding access to clinical care that falls within accepted professional standards and legal obligations.
Doctors who invoke their conscientious objection to obstruct access to a legally permissible, clinically acceptable intervention are accused of abusing their position to undermine legitimate patient care.
This situation is typically cast as an intractable ethical problem – the “pro-life vs pro-choice” dilemma. Or as an equally intractable moral impasse in which the autonomy and rights of patients stand against the autonomy and rights of doctors.
But it’s unhelpful to consider this situation in these terms. In actual fact, the inability to provide a treatment is not a novel or particularly complex situation in medicine.
Legal and professional expectations
There are a multitude of reasons and limitations resulting in an individual doctor being unable to provide a particular treatment. It may be because a treatment is outside her scope of practice, or that the facility does not have appropriate equipment, or, the primary caregiver may lack the specialist knowledge required to treat.
There are a number of legal foundations that determine how doctors must fulfil their duty of care.
According to these legal precedents, which are embedded in the professional guidelines, doctors must recognise the limitations on their scope of practice, appropriately refer when they lack the required skill or ability, “make the care of patients their first concern”, and ensure their personal views do not adversely affect patient care.
And there are well-established professional expectations outlined in the Medical Board of Australia’s Good Medical Practice Guide.
With respect to conscientious objection, the code warns doctors against “using your objection to impede access to treatments that are legal”, and
Not allowing your moral or religious views to deny patients access to medical care, recognising that you are free to decline to personally provide or participate in that care.
Bearing this in mind, it’s clear that the existing professional standard of care that doctors are required to meet in order to maintain professional registration is no different, and no more onerous, than what the Victorian and Tasmanian laws require.
These laws don’t coerce doctors to perform procedures they have a conscientious objection to, but they do require appropriate referral for legitimate treatment of patients they cannot or do not want to treat.
In a 2009 article about the state of conscientious objection in the United States, law researcher Julie Cantor writes:
Conscience is a burden that belongs to the individual professional; patients should not have to shoulder it… They need all legal choices presented to them in a way that is true to the evidence, not the randomness of individual morality.
Conscientious objection must not be used to justify the withholding of referral. It should not be considered differently, or given greater weight than any other “limitation” an individual doctor may have in being unable to personally provide care.
It’s certainly not such a special case that collective professional standards should be lowered, legal precedents dismissed, and special exemptions given to accommodate individual practitioners’ moral values at the expense of upholding common standards of patient care.
Inevitably some will find such laws uncomfortable, however, they strike an appropriate balance.