2.4.5 ms rita butera
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2.4.5 ms rita butera
- 1. Conscientious objection in Victorian abortion law Rita Butera Executive Director, Women’s Health Victoria
- 2. Background Abortion Law Reform Act 2008 (Victoria) • Aimed to bring the law into line with existing clinical practice • Outlines the circumstances in which abortion can take place • States the obligations of registered health practitioners with a conscientious objection to abortion
- 3. Section 8, ALR Act (Vic) 2008 (1) If a women requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must – (a) Inform the woman that the practitioner has a conscientious objection to abortion; and (b) Refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.
- 4. Controversy during campaign for law reform • Significant opposition to the clause during debate • Opposition suggested that: Section 8 was like forcing health professionals with a conscientious objection to provide an abortion, denied religious freedom, human rights, and amounted to professional discrimination • Examples: Archbishop of Melbourne, Australian Catholic University and Doctors in Conscience
- 5. Controversy since law reform • Use of Victoria’s Charter of Human Rights and Responsibilities • Ongoing opposition in the media
- 6. Obligations for health professionals • Present all options to the patient • Refer to another clinician • Explain conscientious objection as a personal view
- 7. What about the rights of women? • What about women’s right to transparency in encounters with the medical profession? • What about her right to information to assist her decision making? • What about her reproductive rights?
- 8. Implementation of Section 8 • Signs in GP practices stated their conscientious objection. • The old AMA (Vic) template: – Due to Dr X’s moral and ethical beliefs, s/he is not able to offer you abortion services. – We do not wish patients who are seeking these services to suffer embarrassment or emotional upset, so we want to make this position clear. – We ask that you respect Dr X’s beliefs by not requesting abortion services from him/her, as they are against his/her conscience.
- 9. Implementation of Section 8 • The new AMA (Vic) template: – Due to Dr X’s personal beliefs, s/he is not able to offer you abortion services, including information on abortion. – If you require abortion services or information about abortion, please ask for an appointment with Dr X (being another doctor in the practice) or refer to www.betterhealth.vic.gov.au/.
- 10. Access and equity implications of non-compliance • Impact on woman’s physical and mental health • Violates her ability to make an informed decision • Traumatises the woman • Delays can compromises care • Additional issues for young women, homeless women, rural women, and women who don’t speak English
- 11. Benefits of Section 8 • Balance women’s rights with those of health professionals • Ensures that women are able to access health care • Acknowledges the need to balance rights and makes the process transparent
- 12. Ongoing challenges • Anti-choice activity • New Premier and Minister for Women’s Affairs • Need to remain vigilant
Editor's Notes
- Good morning/afternoon everyone. I’d like to start by acknowledging the traditional owners of the land on which we’re meeting today and to pay respect to Elders past and present, and to extend that respect to other Indigenous Australians who are here today. I’d like to use this conference as an opportunity to share information about the conscientious objection clause from Abortion Law Reform Act in 2008: to explore the controversy the clause generated, its importance, and issues related to its implementation. Women’s Health Victoria is a women’s health promotion organisation based in Victoria, with the bulk of our funding coming from the Victorian government. Our vision is women living well – healthy, empowered and equal, and this vision has been one of the drivers of our work on abortion, during the campaign for law reform and since the law has been implemented.
- In 2008, the law on abortion in Victoria was reformed to remove abortion from the Crimes Act, and to align the procedure with other health services. The Abortion Law Reform Act safeguards women’s rights over the control of their reproductive capacity and removes legal ambiguities for medical professionals, giving them the security to deliver appropriate services. It outlines the circumstances in which abortion can take place and, importantly, it also states the obligations of registered health practitioners with a conscientious objection to abortion.
- Section 8 of the Act deals with the topic today on conscientious objection. The exact wording is on the slide but, basically, it requires that if a woman approaches a health professional- a doctor or a nurse- either seeking an abortion or seeking advice about abortion, and the health professional has a conscientious objection, that health professional needs to make the woman aware of their conscientious objection, and refer them on to someone in the same profession who they know doesn’t have an objection and who will be able to support the woman with her request.
- During the campaign for law reform, there was a lot of controversy surrounding the conscientious objection clause. Some powerful voices mounted a public challenge against Section 8. They suggested that the obligations placed on health practitioners with a conscientious objection to abortion was like forcing them to provide abortion. At the time, the Archbishop of Melbourne wrote to all Members of Parliament and asserted that the clause removed the freedom to religion. He expressed the view that doctors and nurses with a conscientious objection would be forced to break the law, to leave their profession, or to leave Victoria. A group called Doctors in Conscience also wrote to all MPs asserting that their human rights were being denied by the Bill. And the Australian Catholic University wrote that the Clause was essentially professional discrimination against nurses with a conscientious objection.
- And there has been ongoing opposition to the Clause throughout its existence. Anti-choicers have used Victoria’s Charter of Human Rights and Responsibilities as a basis for their criticism. Many of the submissions in the review of the Charter stated that Section 8 overrode the conscientious objection rights of health professionals. This is despite the fact that the Charter of Human Rights specifically excludes an application to any law regarding abortion. And just a couple of weeks ago we had a doctor with a conscientious objection on the front page of the Herald Sun, who said that he’d been asked to refer a woman to an abortion clinic at 19 weeks after discovering that the foetus was female. ( but he did not reveal the whole picture regarding his background and connections )
- There was an overwhelming assertion at the time of the abortion law reform debate about the absoluteness of doctor’s and nurses rights to conscientious objection in the case of abortion. But what about the obligations of health professionals and their responsibility for patient advocacy? A 2007 study from the New England Journal of Medicine shows that: 86% of physicians believe that doctors are obligated to present all options to their patients and 71% believe that they must refer the patient to another clinician who does not object to the requested procedure 63% of physicians believe that it is ethically permissible for doctors to explain their moral objections to patients (Curlin FA, Lawrence R, Chin M, Lantos J. Religion, conscience and controversial clinical practices. New England Journal of Medicine. 2007;356(6):593-600.) The ethics of referral in the Abortion Law Reform Act reflects these themes. The referral stipulated by the conscientious objection clause is to another health professional in the same profession. It is not a referral for an abortion to an abortion service provider. A woman may or may not go on to terminate her pregnancy, and the purpose of Section 8 is to ensure that women receive timely, accurate information from a professional who does not hold an objection to the health service she seeks. References Curlin FA, Lawrence R, Chin M, Lantos J. Religion, conscience and controversial clinical practices. New England Journal of Medicine. 2007;356(6):593-600. as cited in the American Journal Of Obstetrics And Gynecology. 2008 The ethics of direct and indirect referral for termination of pregnancy.) - Chervenak FA, McCullough LB. American Journal Of Obstetrics And Gynecology. 2008;199(3):232.e1-3. This purpose is reinforced in the article by Cantor on Conscientious objection gone awry - restoring selfless professionalism in medicine published in the New England Journal of Medicine. 2009;360(15):1484-5.
- And where are the voices and rights of women in this debate? What about women’s right to transparency in encounters with the health professionals and the medical profession? Her right to information to assist her decision making? And her reproductive rights?
- Following enactment of the legislation, Women’s Health Victoria’s advocacy on this issue has continued. In 2009, we became aware that women were confronted by signs stating the doctors’ conscientious objection in the reception area of GP’s practices. The AMA also provided a template that is up on the slide. In our view, this advice wasn’t in keeping with the balance of rights in the Act. It presumes that the doctors personal beliefs moral and ethical, and it suggests that the Act requires provision of abortion services. It also prioritises the doctors beliefs over the patients by ensuring that the patient respect the doctor’s religious beliefs. But it doesn’t balance that by providing space for the doctor to respect the patients rights and beliefs.
- Through discussion with the AMA, we were able to recommend changes to the signs. The new template is on the slide. It doesn’t make any judgement about the woman’s beliefs or situate the doctor’s beliefs as ‘moral’. It’s factual and straight-forward, and it provides information about alternative sources of information and options.
- A refusal by a health professional to comply with Section 8 has a number of consequences for women. For example: It can compromise a woman’s physical and mental health if it means that she is unable or unwilling to seek the care and support that she needs A woman’s ability to make an informed decision is violated, particularly if the woman is unaware that she has received wrong or misleading information, or is unaware of her options. When a woman is informed and supported in her decision, her decision is more likely to match up with her own preferences, values, and concerns. It can also cause further trauma to women who may also be traumatised. In cases where the pregnancy is a result of rape, or where there is diagnosis of foetal abnormality, relationship breakdown or intimate partner violence, non compliance with Section 8 can pose of a major challenge to the woman’s mental health and wellbeing. Delay because of blocking access to information also compromises the woman’s care. The earlier in pregnancy an abortion is performed, the lower the risk of complications. And in Victoria, abortions after 24 weeks need to be approved by two different doctors. Services should be arranged to minimise delay, while giving time for decision making. It is presumptuous to believe that removing the conscientious objection clause from the Act would not be detrimental to women. While some women may have the education and resources to be able to effectively seek out information about abortion services, many women are not so favourably situated. What happens to young women, homeless women, has mental health problems, women who don’t speak English, or those who come from rural areas where the one doctor is a conscientious objector?
- Section 8 is an important part of the Abortion Law Reform Act in Victoria. It ensures that a woman’s right to make decisions about her body is balanced against the religious beliefs or conscientious objection of a health professionals. It provides health professionals the professional space to raise a conscientious objection without affecting the woman’s ability to access health care. These health professionals are not being discriminated against. Their religious beliefs are being respected while ensuring that the women in their care don’t suffer as a result of their doctor’s personal beliefs. Women have the right to be treated equally, with dignity and respect. It requires us to think of pregnancy from the perspective of the pregnant woman. And to behave at all times respecting and supporting her autonomy to make her own informed decisions. The sexual and reproductive rights of women are too often compromised by rights relating to freedom of conscience, religion and belief. The process of balancing rights is a complex one, but we have a responsibility to make this process explicit in the law. This balance needs to be acknowledged and made transparent. Section 8 achieves this.
- There are ongoing challenges to the conscientious objection clause and to the Abortion Law Reform Act as a whole in Victoria. As I mentioned earlier, anti-choice groups remain very active in opposing the Act and Section 8. We also have a new Premier and a new Minister for Women’s Affairs, neither of whom voted in favour of the Abortion Law Reform Bill, and who both publicly stated that they were opposed to the conscientious objection clause. Women’s Health Victoria remains active in this space and we need to remain vigilant as a sector in ensuring that access to abortion- an essential health service- is not eroded.