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October 01st 2009 print

Julian McGauran

Labor’s Attack on Conscience

Last year the Victorian parliament passed the Abortion Law Reform Act, the freest abortion laws in the world. The new laws have opened the floodgates to late-term abortions, right up to and including nine months.

While the deep moral conflicts between pro-lifers and pro-choicers are long-running, the current law has brought to the fore a whole new issue of unprecedented discrimination.

An unheralded section in the Act and a world first, section 8(1), takes away the right of medical practitioners with a conscientious objection to abortion to decline any involvement in the act of abortion. These practitioners are now forced to supply the names of other health professionals willing to perform, direct, authorise or supervise an abortion.

This new law has flagrantly stripped away the rights of doctors to decline any involvement in an abortion. The legal requirement of a pro-life doctor to refer a patient to a pro-abortion doctor cannot be dismissed as inconsequential. Nor can it be argued that the pro-life doctor is uninvolved in the final act. Under the new law, they must be involved.

Section 8(1) is the Henry VIII clause. King Henry in 1533 sought the active support of everyone in his realm for his divorce from the Queen. It was not good enough to remain silent or conscientiously object; that would cost you your head. Section 8(1) is no different in principle. It demands commitment to be part of the act of abortion or you lose your licence to practise medicine.

The Victorian parliament also inserted into section 8, clauses (3) and (4), that compel a pro-life doctor or nurse to undertake an abortion in what is termed “an emergency where the abortion is necessary to preserve the life of the pregnant woman”. If section 8(1) is the Henry VIII clause, section 8(3) and (4) are the Baby Jessica clauses. Jessica as officially named was an eight-month-old baby girl aborted at Melbourne’s Royal Women’s Hospital in 2000. The doctors present undertook the late-term abortion on the grounds that it was an emergency as the mother was said to be suicidal over the diagnosis of potential dwarfism of baby Jessica.

The horror incident became a test case for a dormant clause in Victoria’s Crimes Act dealing with destruction of an unborn child of over twenty-eight weeks gestation. The incident led to ethical and legal challenges against the offending doctors’ and the hospital’s actions. The Victorian Abortion Law Reform Act of 2008 is written so that there can never again be such challenges as there were in the Baby Jessica case, and moreover it conscripts pro-life doctors and nurses to carry out an abortion in the case of so-called emergencies or Baby Jessica cases.

So the shadow of the Victorian parliament looms behind every pro-life medical practitioner. They are now either forced to load the gun for another doctor to pull the abortion trigger or in the most dubious cases of emergency undertake the abortion themselves.

What is equally offensive is that the suppression of the right of medical practitioners to exercise their conscience on this deeply moral issue was erased in a conscience vote by the Victorian parliament. The very parliamentarians who hold dear their right to a conscience vote did not hesitate to smite the rights of others on the same matter.

Purportedly, the various human rights agreements Australia engages in are established to protect individual rights such as freedoms of thought, conscience, religion and belief. Therefore, it is appropriate to measure section 8 of the Abortion Law Reform Act against various domestic and international principles.

First, given the high principles which the Victorian parliament espoused when introducing in 2007 the Victorian Charter of Human Rights and Responsibil-ities, you would expect section 8 to be in breach of the charter. And it is! But the Victorian parliament failed to uphold its own charter. While section 48 of the charter expressly excludes any law concerning the unborn from its coverage, it does not abrogate the protection of any conscientious objection to abortion. To the contrary, section 14(2) of the Victorian charter spells out the principle of the protection of conscience: “A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.”

Second, section 8 falls well short of recognised international covenants and declarations. The International Covenant on Civil and Political Rights, which ironically the Victorian charter was based on, clearly spells out the breach of human rights. It states in article 18(1), “everyone shall have the right to freedom of thought, conscience and religion”. Article 18(2) reaffirms this: “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”

Moreover, article 4(2) of the International Covenant on Civil and Political Rights sets up the rights laid out in article 18 as non-derogating rights. It concedes that other rights in the charter can be waived in national emergencies but not article 18(1). Additionally, the Universal Declaration of Human Rights reflects the exact same beliefs in regard to conscience as the International Covenant on Civil and Political Rights.

These charters, covenants and declarations have amounted to nothing as a protection for the basic rights of doctors and nurses in Victoria. Their rights have been shunted aside in a mad pursuit of unfettered access to abortions up to and including nine months.

Given the deep conscientious beliefs held by pro-lifers in society, section 8 is surely a sword to the heart of basic human rights and religious beliefs in this country. This legislation has changed the tenets of our society. It is of national consequence.

The Catholic healthcare system is under the greatest threat from this new law. The Catholic healthcare system has fifteen major hospitals in Victoria and is the largest non-government health provider in Victoria. Given the Catholic healthcare system’s unequivocal anti-abortion stance, section 8 is a deliberate targeting of the Catholic hospitals and their doctors and nurses. The most cursory reading of parliamentary and public debate gives evidence to this claim.

It is bewildering that a vote to deny the right of conscience was ever entangled in this abortion issue in the first place, let alone approved in a free vote in the Victorian parliament. Incredibly, even when presented with an amendment on the floor of the parliament to expunge section 8 from the main Bill, the majority of the Victorian parliament rejected the proposal. It was a winner-takes-all mentality for the pro-abortionist.

What could have been the parliamentary majority’s rationale other than a disdain for pro-life doctors and nurses? In effect, the pro-life doctors and nurses have for their moral beliefs been banished into modern-day catacombs where they fear the consequences of a law that denies their fundamental right not to be involved in any way in an abortion. The consequence of the enforcement of this law is clearly the loss of the medical practitioner’s livelihood, should they not adhere to this law.

The amendment to omit section 8 from the main Abortion Law Reform Bill was rejected by some 70 per cent of the Labor Party. This percentage is not surprising, given the Labor Party is riddled with organisations like Emily’s List that relentlessly pursue the zenith of rights for abortion, even if it means trampling over every basic right established domestically or internationally. It is a culture that has totally taken over the Labor Party. The Liberal Party has no such culture. In the case of the Liberals, some 70 per cent in the Victorian parliament voted against the inclusion of section 8. However, that was not enough to preserve the rights of doctors and nurses, because 30 per cent of the Liberals sided with the 70 per cent of the Labor Party.

It was wrong that the state Liberals were allowed by their leadership to be divided on this issue in the first place. Section 8 did not warrant a conscience vote of the Liberal Party members. It should have been a vote taken by the whole party as a matter of party policy. After all, individual conscience is at the heart of the party’s philosophy. The conscience vote lay only with the abortion issue in the main Bill and not with section 8.

There is now a bad law in Victoria which breaches international covenants, as well as our national ethos.

Action under the Constitution can be taken at the federal level to override the state law. There are a number of precedents, the last being the Human Rights (Sexual Conduct) Bill 1994 that overrode the Tasmanian homosexual laws on the basis that it was a breach of article 17 of the International Covenant on Civil and Political Rights. That is the same covenant which section 8 breaches.

The remedy is to revert to what was already in place before section 8 and worked well—that is, the reliance on the Australian Medical Association’s (AMA) Code of Ethics. The AMA Code of Ethics provides:

“When a personal moral judgment or religious belief alone prevents you from recommending some form of therapy, inform your patient so that they may seek care elsewhere. Recognise that you may decline to enter into a therapeutic relationship where an alternative health care provider is available … You must inform your patient so that they may seek care elsewhere.”

The essence of the AMA Code of Ethics is that the existing common law and the existing code of practice require that a doctor with a conscientious objection to a particular service must inform the patient of that conscientious objection and ensure that a service is available elsewhere. In the week prior to the introduction of the Victorian Bill, the AMA stated:

We are still concerned about the conscientious objection clause (section 8), and would like to see it amended. The Victorian Law Reform Commission stated that the AMA Code of Ethics provided a sensible balance between the needs of the practitioner and the patients, and we have asked the Parliament to amend the legislation to reflect the law.

So the difference between the AMA’s Code of Ethics and section 8 is that the latter is compulsory.

We, the lawmakers, fail the medical profession and society as long as this section remains law in Victoria and we do not act to reverse it. It ought to go back to the parliament that introduced the law, but failing this the solution must lie with the federal parliament.

Julian McGauran is a Liberal Senator for Victoria.