One of the main concerns about the Bill recently introduced to amend New South Wales laws on abortion is how health practitioners with a conscientious objection to participating in abortion will be regulated. Under the Bill, health practitioners must disclose that they have a conscientious objection if they are asked to perform, assist with, provide advice about, or make a decision concerning whether an abortion should be performed.
There is also a referral requirement if a request is made by a patient for the practitioner to perform an abortion on the patient or to advise the patient about an abortion. In such a situation the practitioner must transfer the care of the patient to someone who the practitioner reasonably believes does not have a conscientious objection or advise the patient how to locate such a person.
As the Bill regulates “registered health practitioners” (defined as any “person registered under the Health Practitioner Regulation National Law to practise a health profession”) a wide range of health practitioners will be covered including doctors, nurses, midwives, pharmacists and psychologists.
The obligation to refer may seem uncontroversial but many health professionals with a conscientious objection consider that the life of a human person begins at conception or at some stage during pregnancy. It is this belief that makes the requirement to refer a patient to someone who the practitioner believes will perform the abortion unacceptable as it forces the practitioner to be complicit in an act they consider will end the life of a child.
The referral provisions are particularly hard to justify considering how easily a patient could locate a practitioner willing to perform an abortion through an internet search, a phone call or other means.
The Bill also fails to provide any protection for practitioners with a conscientious objection so they cannot be subjected to a detriment if they refuse to perform or assist with an abortion.
Instead, the Bill explicitly provides that it does not limit “any duty owed by a registered health practitioner to provide a service in an emergency”. Such a provision may seem reasonable but it leaves practitioners with a conscientious objection exposed to a possible legal requirement to perform or assist with an abortion.
Pro-life health professionals will do everything they reasonably can to preserve a patient’s life, but to expect them to participate in an abortion when they recognise that it involves the killing of a child is something that they obviously cannot accept.
The proper approach to regulating emergency situations that may require an abortion to be performed is an important issue that needs to be carefully addressed by appropriate legislation.
Parliament should obtain expert advice regarding the nature of the emergencies that can arise during pregnancies, the possible range of treatments for these emergencies and whether health institutions can be managed so that suitable medical care can be provided without forcing practitioners to be involved in a procedure that they consider ends the life of a child.
Obtaining this evidence would allow Parliament to draft a provision that could ensure patients are provided with the care considered appropriate in emergency situations while avoiding the situation where health practitioners are legally required to violate their conscience.
Considering the many problems contained within the Bill it must be amended to adequately protect the conscience rights of practitioners. If enacted in its current format it will be a grave act of unjust discrimination against health professionals with a conscientious objection.
A refusal to make the necessary amendments will also likely cause some of the most intelligent and caring individuals in society to decide not to become or remain health professionals. Such a result will be a significant harm imposed on all members of the community including those patients who parliamentarians are aiming to help through the proposed amendments.
The Bill could be passed by the Upper House on 17 September or on the following days so there is still time to lobby Parliamentarians to make the necessary amendments. Anyone committed to protecting the conscience rights of practitioners should visit, call or email members of the Upper House to express their concerns. Contact details may be found at https://www.parliament.nsw.gov.au/members/pages/all-members.aspx.
Dr Greg Walsh is a Senior Lecturer at The University of Notre Dame Australia teaching a range of courses including Bioethics and the Law. Commentary on the article can be sent to firstname.lastname@example.org.