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Doctors' moral objections don’t justify denying abortion access

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…

Campaigners outside the Victorian parliament in the run-up to the 2008 reform of state’s abortion law, which is under fire. AAP Image/Mariza O'Keefe

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.

Everyday practice

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.

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35 Comments sorted by

  1. Chris Harper

    Engineer

    You sadi: "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."

    Declining to act against their conscience in not providing information on abortion is not to obstruct access. This a loaded description.

    Any intelligent person is capable of finding alternatives should they so wish, and in this case no impediment is being put in their path.

    Declining to assist is not obstruction.

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    1. Citizen SG

      Citizen

      In reply to Chris Harper

      Declining to assist i snot obstruction; but, declining to assist by withholding referral or information about the possibility of referral is obstructive and precisely the act that medical board is taking action for.

      Not all patients are intelligent, or understand english well or are empowered within our healthcare system. The act of declining to assist (by referring, not participating in abortion) can be a breach of good medical practice.

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    2. mel otto

      home duties

      In reply to Chris Harper

      Declining to assist is obstruction if they are the only Dr in town (small country town obviously) I have heard of a few people who had to travel 300+km to access a Dr who would refer them, they were lucky they had the means to travel
      The woman has little to no education, english is 2nd or 3rd language and thinks she isnt allowed to ask another Dr as first one said his word is final

      Both forms of obstruction.

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  2. Comment removed by moderator.

  3. Malcolm Parker

    Professor & Head of Ethics, Law and Professional Practice at University of Queensland

    A doctor’s conscientious objection to referral for abortion is not analogous to the “multitude of reasons and limitations resulting in an individual doctor being unable to provide a particular treatment” such as the treatment being outside the scope of practice or beyond the practitioner’s level of knowledge and skills. None of the examples given include the crucial element of conscientious objection on moral grounds. This issue is clearly and categorically different from the other limitations doctors…

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    1. Tim Baxter

      Research Assistant at Victorian Centre for Climate Change Adaptation Research - Melbourne Law School

      In reply to Malcolm Parker

      Malcolm,

      Regarding your conclusion ("exercising a conscientious objection does not impede access to lawful abortion services"), can you genuinely not see how a doctor refusing to provide referral information to a patient might curtail that patient's access to lawful abortion services?

      What if, as was mentioned above, the patient is among any of the many disadvantaged groups in our society due to low income, low education, poor understanding or any other of a multitude of reasons? What if their…

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    2. Jeff Payne

      PhD in Political Science and Masters in Public Policy

      In reply to Malcolm Parker

      Prof. Parker, you above all people should recognize what is happening here. The real debate here is about freedom. Isaiah Berlin, in the 1950's, identified two forms of freedom, negative and positive. Negative freedom is the classical liberal understanding of freedom which can be characterized as freedom from constraint. This understanding of freedom is usually deployed if you want to emphasize individuality and individual choice. Positive freedom is freedom to achieve one's optimal choice. One is…

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    3. Andy Cameron

      Care giver

      In reply to Malcolm Parker

      As a taxpayer, in the Victorian GP case, I would have hoped the woman had to pay the GP's costs, or even charge her as a vexatious litigant, or similar. What happens to doctors who don't believe certain conditions exist, such as ADHD?

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    4. Andy Cameron

      Care giver

      In reply to Tim Baxter

      Tim, do you have any evidence whatsover that having "low income" or "low education" have anything to do with women accessing abortion? I would question whether you actually know any such people to hold the views do you.

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    5. Andy Cameron

      Care giver

      In reply to Jeff Payne

      Jeff, I can tell you what actual medical doctors will tell you about your idea they should take their orders from dead academics in the Philosophy department (who have no medical training, let alone practice).

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    6. Chris Harper

      Engineer

      In reply to Jeff Payne

      Jeff,

      The whole point is, my exercising my negative rights affects no one. No one else is required to lift a single finger for my negative rights to be respected.

      However, positive rights require that someone, somewhere, be forced, or coerced in some manner, to provide them. In doing do their negative rights are breached.

      If someone has a right to any good or service, anything at all, then the option must exist that someone, somewhere, must be forced, under threat of sanction, to cooperate.

      Negative rights limit the power to control. Positive rights are a weapon of control, and are incompatible with a free society.

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    7. Jeff Payne

      PhD in Political Science and Masters in Public Policy

      In reply to Chris Harper

      You have presented the arguments against positive freedom Chris in a very clear and succinct manner, I hope I can replicate the achievement when I present reasons why I disagree. I will argue that you are correct in identifying the coercive nature of positive freedom but slavery is imposed more generally in a society guided by negative freedom. The reason for this conclusion is because choice is limited in a society informed by negative freedom by those with power.

      Freedom, at its most basic…

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    8. Jeff Payne

      PhD in Political Science and Masters in Public Policy

      In reply to Andy Cameron

      There are two responses to this point Andy. The first is that 'actual medical doctors' already live by a set of ideas that have been articulated by dead academics in philosophy department. It is the ones that certain doctors disagree with that they may dismiss. The second response is; who cares what these doctors think. I mean, parliaments create laws which we all must live by including doctors. I live by them to the letter. So should they.

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    9. Andy Cameron

      Care giver

      In reply to Jeff Payne

      Jeff, actually the real actually lived experience of Socialism showed the world that "positive rights" is largely a contradiction in terms.

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    10. Andy Cameron

      Care giver

      In reply to Jeff Payne

      Jeff, I'm not quite sure you get that negative rights, protect citizen's from the violence of the state. You are advocating the state use its violence to force a doctor to act in its will.

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    11. Andy Cameron

      Care giver

      In reply to Jeff Payne

      "The second response is; who cares what these doctors think"?
      I do! If you want Sara Hansen Young to treat you, you go ahead. I'll stick with Dr. Gregory House or Dr. Christina Yang thanks.

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    12. Chris Harper

      Engineer

      In reply to Jeff Payne

      You said: "parliaments create laws which we all must live by including doctors. I live by them to the letter."

      I doubt that very much.

      Today there are so many laws that it is close to impossible to pass a day without breaking some law or another. Besides, if I find a law reprehensible I have a moral obligation to break it.

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    13. Chris Harper

      Engineer

      In reply to Jeff Payne

      Jeff,

      'Rights' are a limitation on the powers of the sovereign body. Positive rights are not rights in any meaningful sense because they entail an increase in the power and authority of the state at the expense of individuals. They are a means by which the state purchases a clientele at the expense of those who are forced to surrender their real rights.

      Positive rights are entitlements provided as a result of activities forced on others.

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    14. Jeff Payne

      PhD in Political Science and Masters in Public Policy

      In reply to Chris Harper

      Yes Chris, as already said, I acknowledge that positive rights are achieved at the cost of coercion of the few. My claim is that the sum total of liberty in a society is maximized with the cost of some coercion. I am a libertarian who recognizes that perfect liberty is impossible. There must be some coercion. This coercion is limited and properly directed by having a robust and transparent institutions which enable participation of the populace in decision making. I am, in short, a republican on…

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    15. margot cullen

      carer

      In reply to Andy Cameron

      ADHD !@#$%^& now thats food for comment. no i dont think it is a medical cond either (yeah i know i dont have the science/research etc to back up my belief). could it not be just evolution. the brain like the rest of our body is slowly and has slowly EVOLVED....yes? ok we can see quite easily the external physical changes but we cant see the brain changes other than for changes in behaviour which are somewhat difficult to understand and accept as maybe evolutionary. evolutionary in that these humans that are diagnosed with ADHD maybe are just simply bored with the rest of us (are they of a higher calibre brain function if you like)and we are trying (with drugs) to bring them back down to our presumed normal behaviour. wow i bet that gets some people talkin.

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    16. Andy Cameron

      Care giver

      In reply to margot cullen

      read me, I chose the ADHD example, as it struck me as the analogy that best troubled those who insist the doctor must act contrary to his opinion, whether medical or ethical. I have actual doctor friends (well more acquaintances) who do not believe there is any medical condition ADHD, will not prescribe stimulants, nor "aid and abet the parents and their school in drugging their boy to treat his being a boy". No one has ever called him on his "ethical violations". I am surprised no one on this thread has risen to this challenge.

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  4. Meg Thornton

    Dilletante

    If a doctor truly objects to abortion, to the point where they are not willing to provide them, and object really strongly to the idea of even having to think about providing them, there are a lot of steps they can take to deal with it even before they take the ultimate conscience-driven step of leaving the medical profession altogether. They can get the heck out of gynaecology - the speciality where abortion provision is more likely to be a requirement. They can refuse to deal with pregnant patients…

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  5. Ian Alexander

    Reader

    A doctor's first responsibility is to provide the patient with the best possible advice and care. Providing full information on all options to a patient is always a doctor's responsibility.

    If a doctor refuses to do this, they should not be allowed to practice, as clearly they are putting their own selfish interests in front of those of the patient. If a doctor wishes to conscientiously object, he/she can always resign.

    As for Victoria...notice how the discussion to water down the law is run by middle aged men?

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    1. Mervyn Thomas

      logged in via email @emphron.com

      In reply to Ian Alexander

      This is an extraordinarily illiberal attitude to take. If a doctor disagrees with my position they should not be allowed to practice?

      I know that my own GP would not actively refer a patient for an elective abortion without urgent medical need, but he is a fine GP who chooses to bulk bill specifically so that he can serve the poor and the disadvantaged.

      He would carefully explain to a patient why he could not refer and suggest that they make contact with another GP. He would not actively refer to another GP, because he would feel this made him complicit is an abortion without medical need.

      If he were forced out of practice, the last bulk billing GP in the area would have gone. If he had been forced out of practice two years ago, I would be dead.

      These are difficult and complex issues with conflicting human rights. Public policy should be based on something a little more nuanced than `If a doctor refuses to do this, they should not be allowed to practice'

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    2. Sue Ieraci

      Public hospital clinician

      In reply to Mervyn Thomas

      The laws governing medical practice do not require doctors to treat any particular patient outside the context of an emergency.

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    3. Andy Cameron

      Care giver

      In reply to Sue Ieraci

      Indeed, Sue, from my legal studies, there are many, many good reasons, why, even in an emergency, a doctor might have misgivings.

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  6. Rene Oldenburger

    Haven't got one

    "News Weekly, October 26, 2013

    Dr Mark Hobart, a Melbourne GP, is being investigated by the Medical Board of Victoria for allegedly refusing to refer a couple for an abortion of their healthy 19-week unborn baby, simply because she was a girl
    "

    Every doctor should have the right to refuse referring anyone who wants an abortion on those grounds

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  7. Carolyn Hirsh

    Former Member of Parliament, Psychologist

    The law regarding referral is simple. Anti-abortion doctors are obliged to refer patients to doctors who are not anti-abortion. The law prevents them forcing their ideology onto their patients, since ideology and superstion have no place in 21st century medical practice. Discussions between doctor and patient about abortion will include issues of ethics and morality, which do have a place in modern medical practice, but cannot be legislated.

    Arguments on this issue become blurred when 'belief…

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    1. Mervyn Thomas

      logged in via email @emphron.com

      In reply to Carolyn Hirsh

      Referring a patient on to a practitioner who will perform an abortion is to actively facilitate that abortion. Consider the case of female genital mutilation. If a doctor were to quite properly refuse to participate in that procedure, but instead knowingly referred a patient to a practitioner who would, the doctor would be considered culpable - and quite rightly so.

      In the same way a doctor who considers medically unnecessary abortion unethical must feel that their ethical boundaries are compromised…

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    2. Andy Cameron

      Care giver

      In reply to Carolyn Hirsh

      I'm sorry Carolyn, but if you seriously think Parliament has the power to legislate ordering us what to do with "ideology" you really need to do some research on our Parliament's powers. And if you really did believe this, how could you not revolt? You are basically advocating Stalinism.

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    3. Chris Harper

      Engineer

      In reply to Carolyn Hirsh

      Carolyn,

      So, briefly, you would use the power of the State to coerce others to act in accordance with your ideology and morality, in breach of their own sense of morality?

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  8. Andy Cameron

    Care giver

    "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."
    Not by me they're not. As a member of a medical family, I would be interested in the authority and qualifications of non-doctors to make these accusations. While I agree that a woman has the right to choose an abortion, at any time during the pregnancy, and for whatever reason she wishes, that…

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  9. Roxane Paczensky

    Registered Nurse

    So does the doctor who has the right to concienciously object to performing abortions, but currently doesn't have the right to concienciously object to refer a patient seeking abortion, carry any moral responsibility if the patient deprived of information accidently dies while trying to self abort with a coathanger?
    I ask because this practice, and others equally dangerous to the health/life of the pregnant woman, was common before abortion was legalized. If the concientious objectors against referral…

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    1. Andy Cameron

      Care giver

      In reply to Roxane Paczensky

      "carry any moral responsibility if the patient deprived of information accidently dies while trying to self abort with a coathanger?"
      None whatsoever. But if the woman's self-abortion induces the birth of a baby who dies minutes later, the mother will be facing a murder charge.

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