CHAPTER EIGHT
8.4 Legislative Overview on Conscientious Objection
Table 2 below summarises the current relevant legislative provisions in Australia.
Essentially, there is no statutory duty on a doctor by contract or statue to carry out an abortion in the Australian Capital Territory,28 the Northern Territory,29 South
Australia,30 Western Australia,31 and Tasmania,32 although exceptions expressly exist with regard to an emergency situation in the Northern Territory, South Australia and Tasmania. New South Wales, Victoria and Queensland do not have specific
legislation recognising conscientious objection by doctors to abortion.
In addition to legislation, or in lieu of it, professional standards can be found in the policies of various organisations such as the Australian Medical Association’s (‘AMA’)
‘Conscientious Objection’,33 and ‘Ethical Issues in Reproductive Medicine’,34 and the Royal Australian and New Zealand’s College of Obstetricians and Gynaecologist’s (‘RANZCOG’) ‘Code of Ethical Practice’.35
28 Health Act 1993 (ACT) ss 84-5.
29 Medical Services Act (NT) ss 11(6)-(7).
30 Criminal Law Consolidation Act 1935 (SA) s 82A(5),
31 Health Act 1911 (WA) s 334(2).
32 Reproductive Health (Access to Terminations) Act 2013 (Tas) s 6(1).
33 Australian Medical Association, Conscientious Objection 2013
<https://ama.com.au/position-statement/conscientious-objection-2013>. Abortion is not the only area where doctors may have a conscientious objection. Other areas include end of life decisions, blood transfusions, organ donation, circumcision and euthanasia.
34Australian Medical Association, Ethical Issues in Reproductive Medicine (2013) <https://ama.com.au/position-statement/ethical-issues-reproductive-medicine-2013>.
35 Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Code of Ethical Practice (November 2001, revised 2006) <https://www.ranzcog.edu.au/the-ranzcog/policies-and-guidelines/code-of-ethical-practice.html>.
Table 2 – Recognition and Limitations to Conscientious Objection to Abortion
Jurisdiction Act Recognition of a doctor’s conscientious objection to refuse to assist in or carry out an abortion
No duty to terminate or assist in terminating a woman’s
Duty to perform an abortion in an emergency where necessary to necessary to save the life or to prevent grave injury to the physical or mental health of the woman there is a duty to perform an abortion in an emergency if it is necessary to save the life of the woman or to
These documents are applicable nationally, despite the discordance in Australia’s abortion laws. This presents a challenging situation where the profession’s ethical position on various medical practices have no state boundaries, yet must be integrated into the differing legal norms of a jurisdiction. In addition, State health departments and individual hospitals or facilities may also have policy directives that articulate such duties.36
36 See, eg, Policy Directive, New South Wales Health, ‘Pregnancy – Framework for Terminations in New South Wales Public Health Organisations’ (PD2014_022, 2 July 2014) 7 [4.2].
The AMA defines conscientious objection as a refusal to provide or participate in a legally recognised treatment or procedure due to a conflict with the doctor’s personal beliefs and values.37 Its position is that no doctor should be compelled to act
contrary to his or her moral convictions or religious beliefs except as required by law or in an emergency.38 The profession accepts, therefore, that conscientious
objection is a limited right subject to the State’s authority to override it.
In regards to reproductive medicine, the AMA notes that a doctor may refuse to be clinically involved in the care of a patient seeking an abortion, but such a refusal should not impede the patient’s access to care.39 The AMA’s Position Statement on
‘Conscientious Objection’ states that indirect actions such as referring the patient to another doctor to provide the service is participation in the act.40 The main issue, therefore, is whether the lawmaker agrees that such participation infringes the doctor’s freedom of conscience and whether its laws are in line with the profession.
Parker notes that Codes of Conduct are owned by the profession and remain distinct from the law, but they are not above being inadequate.41 In some cases, where an aspect of self-regulation is enshrined in the law, the profession can end up
surrendering that aspect of its conduct to external regulation.42 This appears to have occurred in Australia and will be discussed further below at 8.6.
There are few studies on the attitudes of Australians to abortion, and fewer still on the attitudes of doctors to conscientious objection to abortion.43 This is unfortunate given its self-evident relevance to the current debate. This thesis notes that a key issue is not just how many doctors have a conscientious objection to abortion, but how many support the right of their colleagues to be protected by conscientious objection.
37 Australian Medical Association Conscientious Objection, above n 33 [33].
38 Ibid [1].
39 Australian Medical Association, Ethical Issues in Reproductive Medicine, above n 34 [2.4.2].
40 Australian Medical Association Conscientious Objection, above n 33 [1].
41 Parker, above n 1, 449.
42 Ibid.
43 Victorian Law Commission, Law of Abortion, Final Report 15 (2008), 58-68.
http://www.lawreform.vic.gov.au/sites/default/files/VLRC_Abortion_Report.pdf. The report noted that few studies had attempted to rigorously ascertain attitudes to abortion in Australia and those done had major flaws.
Internationally, a number of quantitative studies have been conducted on doctors or medical students and their attitudes to abortion. Strickland’s 2012 study of the attitudes of 1,437 medical students from universities in Cardiff, London and Leeds found that a third of participants would not perform an abortion for fetal disability after 24 weeks gestation, a third would not perform abortion for failed contraception after 24 weeks and a fifth would not perform abortion for a minor who was pregnant through rape.44 She concluded that although there were an increasing number of abortions taking place in the United Kingdom, fewer doctors were willing to perform them and if all the participants in the study acted on their conscience, it might be practically impossible to accommodate such doctors in the medical profession.45
Nieminen et al’s 2013 study of 548 first and last year medical and nursing students and professionals in Finland concluded that whilst only a minority would seek conscientious objection for themselves, one third to one half of respondents supported a doctor’s right to conscientious objection. A majority felt that
conscientious objection would cause conflict in the workplace, with others needing to take over an unpleasant task.46 The authors concluded that rational discussion on conscientious objection by health care workers requires professionals, politicians and the public to be made aware of the complexity of the issues involved. This included how to accommodate conscientious objection with lawful abortion and how to
address the impact of conscientious objectors in the workplace, where discrimination and social conflicts might occur.47
This thesis echoes this need for more research and more detailed discussion from people who will be affected by such legislation such as doctors. This Chapter will now focus on the legislation in Victoria, Tasmania and South Australia and its position on direct participation in an emergency and indirect participation by referral to another practitioner who has no conscientious objection.
44 Sophie Strickland, ‘Conscientious Objection in Medical Students: A Questionnaire Survey’ (2011) 38(1) Journal of Medical Ethics 22.
45 Ibid.
46 Petteri Nieminen et al, ‘Opinions on Conscientious Objection to Induced Abortion Among Finnish Medical and Nursing Students and Professionals’ (2015) 16 BMC Medical Ethics DOI:10.1186/s12910-015-0012-1.
47 Ibid.