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MEDICAL REFERRAL FOR ABORTION AND FREEDOM OF CONSCIENCE IN AUSTRALIAN LAW

  • Joanne Howe (a1) and Suzanne Le Mire (a2)

Abstract

This article examines legislative changes related to abortion regulation in Australia that create obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of conscience in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of freedom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion.

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References

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1 Abortion Law Reform Act 2008 (Vic) s 8.

2 Henrietta Cook, Abortion Law Changes Eyed as Dr Mark Hobart Probed, The Age (Nov. 7, 2013), https://www.theage.com.au/national/victoria/abortion-law-changes-eyed-as-dr-mark-hobart-probed-20131107-2x2rg.html.

3 Mark Hobart, Submission No. 68 to Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Victorian Charter of Human Rights and Responsibilities Act 2006, June 9, 2011, 1.

4 Susie O'Brien, Controversial Victorian Doctor Who Refused to Refer Women for Abortions Has Defended Himself after an Investigation, Herald Sun (Nov. 11, 2013), http://www.heraldsun.com.au/news/victoria/controversial-victorian-doctor-who-refused-to-refer-women-for-abortions-has-defended-himself-after-an-investigation/story-fni0fit3-1226757706941.

5 On October 20, 2014, Dr. Rachel Carling-Jenkins from the Democratic Labour Party introduced the Infant Viability Bill 2014 (Vic) as a private members’ bill into the Victorian Parliament. The bill's title was listed on the Legislative Council's notice paper, and the following long title was incorporated into Hansard: A Bill for an Act to ensure the provision of access to holistic care and support to pregnant women and preborn children so as to promote infant viability, to amend the Abortion Law Reform Act 2008 and Crimes Act 1958, to make consequential amendments to certain other Acts and for other purposes.

The bill was defeated on 25 May 2016. Parliamentary Debates (Hansard) Legislative Council, Fifty-Eight Parliament, First Session, Wednesday 25 May 2016, paras 2405, 2407, 2414.

6 Reproductive Health (Access to Terminations) Act 2013 (Tas).

7 Termination of Pregnancy Law Reform Act 2017 (NT).

8 Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 (NSW).

9 Miles Godfrey, Vote to Fully Decriminalise Abortion in NSW Is Lost, The Daily Telegraph (May 10, 2017), http://www.dailytelegraph.com.au/news/nsw/vote-to-fully-decriminalise-abortion-in-nsw-is-lost/news-story/cdc32f5dead633e02d4cd8034528f4f8.

10 Oreb, Naomi, Worth the Wait? A Critique of the Abortion Act 2008 (Vic), 17 Journal of Law and Medicine 261, 266 (2009).

11 Health Practitioner Regulation National Law Act 2009; Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, Mar. 17, 2014 [hereinafter Good Medical Practice Code].

12 For the terms of reference and membership of the inquiry see Department of the Prime Minister and Cabinet, Religious Freedom Review, https://www.pmc.gov.au/domestic-policy/religious-freedom-review (last visited Apr. 18, 2018). The Review handed down its final report on May 18, 2018; see https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religious-freedom-review-expert-panel-report-2018.pdf.

13 de Costa, Caroline et al. , Abortion Law across Australia—A Review of Nine Jurisdictions, 55 Australian and New Zealand Journal of Obstetrics and Gynaecology 105–11, 105 (2015).

14 R v. Bourne [1939] 1 KB 687.

15 Hart, H.L.A., Abortion Law Reform: The English Experience, 8 Melbourne University Law Review 388411, 389 (1972).

16 Brett, Peter, The Origin of the Law in Australia: The Menhennitt Ruling in Victoria, in Abortion: The Unenforceable Law 24, 25 (McMichael, Tony ed., 1972). Note, however, that the maximum penalties were different in the two Acts: id. at 390.

17 Brett, supra note 16, at 25.

18 Baird, Barbara, Medical Abortion in Australia: A Short History, 23 Reproductive Health Matters 169–76, 169 (2015).

19 Id. at 170.

20 Heath, Mary & Mulligan, Ea, Abortion in the Shadow of the Criminal Law? The Case of South Australia, 37 Adelaide Law Review 4168 (2016); Kate Gleeson, Still Keeping Women Out: A Short History of Australian Abortion Law, The Conversation (Jan. 24, 2013), https://theconversation.com/still-keeping-women-out-a-short-history-of-australian-abortion-law-11732.

21 R v. Davidson [1969] VR 667.

22 R v. Wald (1971) 3 DCR (N.S.W.) 25.

23 About Us: What We Stand For, Right to Life Australia, http://www.righttolife.com.au/about (last visited Apr. 18, 2018).

24 See, e.g., Cherish Life Queensland, http://www.cherishlife.org.au (last visited Apr. 18, 2018); Pro Life Victoria, http://www.prolife.org.au/contact (last visited Apr. 18, 2018).

25 Emily's Voice, https://emilysvoice.com/about-emilys-voice (last visited Apr. 18, 2018).

26 Reproductive Choice Australia, http://www.reproductivechoiceaustralia.org.au (last visited Apr. 18, 2018).

27 Children by Choice Association Incorporated, https://www.childrenbychoice.org.au (last visited Apr. 18, 2018).

28 Emily's List, https://www.emilyslist.org.au (last visited Apr. 18, 2018).

29 Kassner, J. & Lefkowitz, D., Conscientious Objection, in Encyclopedia of Applied Ethics 594601, 594 (Chadwick, Ruth ed., 2nd ed. 2012).

30 Kilinç, Nilgün Toker, The Morals and Politics of Conscientious Objection, Civil Disobedience and Anti-Militarism, in Conscientious Objection: Resisting Militarized Society 6174 (Çinar, Özgür Heval & Üsterci, Coskun eds., 2009) (conscientious objection is most commonly asserted as a right to withdraw, or not act, as in the case of refusing to refer for abortion, but could also encompass the ability, for reasons of conscience, to act); see Sepper, Elizabeth, Taking Conscience Seriously, 98 Virginia Law Review 1501–76, 1503, 1530 (2012).

31 Duffey, Michael, The Ethics of Conscientious Objection, in Encyclopaedia of Violence, Peace, and Conflict 427 (Kurtz, Lester ed., 2nd ed. 2008).

32 Anders Schinkel, Conscience and Conscientious Objections 485 (2007) (identifies the nineteenth century as the first time the term was used); see also Hitomi Takemura, International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders 2 (2009).

33 Feldman, Noah, The Intellectual Origins of The Establishment Clause, 77 New York University Law Review 346428, 357–72 (2002); Duffey, supra note 31, at 427–28.

34 See, e.g., Thomas Aquinas arguing that “it is necessary for man to receive from God some additional principles by which he may be directed to supernatural happiness”: Thomas Aquinas, Summa Theologica Q. 62, art. 1, in Introduction to Saint Thomas Aquinas 590–91 (Anton C. Pegis ed., 1948); Pellegrino, Edmund D., The Physician's Conscience, Conscience Clauses, and Religious Belief: A Catholic Perspective, 30 Fordham Urban Law Journal 221–44, 227 (2002).

35 The “sola scriptura” approach, prominently espoused by Martin Luther, posited that the scripture itself was the only authoritative source of God's word: Powell, H. Jefferson, The Original Understanding of Original Intent, 98 Harvard Law Review 885948, 889–91 (1985).

36 Secular approaches to freedom of conscience were first adopted in Australia in the military context: Defence Act 1903 (Cth) s 61(2) (compilation as of November 30, 1991).

37 Smith, Steven D., What Does Religion Have to Do with Freedom of Conscience?, 76 University of Colorado Law Review 911–40, 912 (2005).

38 Parliamentary Research Service, Defence Legislation Amendment Bill 1992, 1 (1992).

39 See, e.g., Health Act 1911 (WA) s 334, stating that “[n]o person … is under a duty … to assist or perform in the carrying out of an abortion.”

40 Miranda Devine, Doctor Risks His Career after Refusing Abortion Referral, Herald Sun (Oct. 5, 2013), http://www.heraldsun.com.au/news/opinion/doctor-risks-his-career-after-refusing-abortion-referral/news-story/a37067e66ed4f8d9a07ec9cb6fd28cf5.

41 Hugo Gye, Australian Doctor Could Be Struck Off after Refusing to Carry out Abortion on Woman Who Didn't Want to Have a Girl, Daily Mail (Oct. 8, 2013), http://www.dailymail.co.uk/news/article-2449568/Doctor-Mark-Hobart-struck-refusing-abortion.html#ixzz4jWE6Wjny.

42 Smith, Hugh, Conscience, Law and the State: Australia's Approach to Conscientious Objection since 1901, 35 Australian Journal of Politics and History 1328, 16 (1989).

43 Gabriel A. Moens & John Trone, Lumb, Moens and Trone, The Constitution of the Commonwealth of Australia Annotated 799 (8th ed. 2012).

44 Harmon, Shawn H. E., Abortion and Conscientious Objection: Doogan—A Missed Opportunity for an Instructive Rights-Based Analysis, 16 Medical Law International 143–73, 147 (2016).

45 Steven D. Smith, Rise and Decline of American Religious Freedom 49 (2014); Bertelsen, Soledad, Conscientious Objection of Healthcare Providers: Lessons from the Experience of the United States, 3 Notre Dame Journal of International and Comparative Law 121–48, 129 (2013); Smith, supra note 37, at 913.

46 Bertelsen, supra note 45, at 131–32.

47 Smith, supra note 37, at 916–17.

48 Feldman, supra note 33, at 354.

49 Smith, supra note 37, at 918–19.

50 John Locke, Second Treatise of Government § 3 (C.B. Macpherson ed., Hackett Publishing 1980) (1690). This idea that there is a separation between those matters that are secular and those that are religious can also be traced to the work of John Calvin (the political kingdom and the spiritual kingdom) and Martin Luther (two kingdoms): see Witte, John, That Serpentine Wall of Separation, 101 Michigan Law Review 18691907, 1883–84 (2003).

51 Sawicki, Nadia N., The Hollow Promise of Freedom of Conscience, 33 Cardozo Law Review 13891449 (2012).

52 John Locke, A Letter Concerning Toleration (James H. Tully ed., William Popple trans., Hackett Publishing 1983) (1689).

53 Greenawalt, Kent, Religious Toleration and Claims of Conscience, 28 Journal of Law and Politics 91128, 94 (2013).

54 Goodrich, Luke W., The Health Care and Conscience Debate, 12 Engage 121–39, 123 (2011).

55 Greenawalt, supra note 53, at 97.

56 Smith, supra note 37, at 920–21 (arguing that coercion can be an effective means of overcoming claims of conscience).

57 Greenawalt, supra note 53, at 98.

58 The proposed changes to Australian vaccination regimes fall into this category: Child Vaccination: Government Flags Welfare Crackdown, The Australian (Apr. 7, 2015), http://www.theaustralian.com.au/national-affairs/health/child-vaccination-government-flags-welfare-crackdown/news-story/7f742c6965360e20590c9a6860cfb40c.

59 Smith, supra note 37, at 922–27.

60 Sawicki, supra note 51, at 1408.

61 Smith, supra note 37, at 923.

62 See, e.g., Defence Act 1903 (Cth) s 61CC.

63 See, e.g., Amy J. Shaw, Crisis of Conscience: Conscientious Objection in Canada during the First World War 3 (2009) (explaining that the conscientious objectors to military service in Canada had to establish their active membership of an established religion).

64 Greenawalt, Kent, Refusals of Conscience: What Are They and When Should They Be Accommodated?, 9 Ave Maria Law Review 4765, 53 (2010). But see Pellegrino, supra note 34, at 232 (arguing that there are conceptual difficulties with the concept of secular conscience). For an argument that posits that only secular claims of conscience should be respected in the medical field, see Weinstock, Daniel, Conscientious Refusal and Health Professionals: Does Religion Make a Difference, 28 Bioethics 815, 12–13 (2014).

65 Smith, supra note 37, at 923.

66 This is particularly evident in the context of abortion where arguments in favor of permitting conscientious objection are often based on recognition of the physician's right to freedom of conscience, while those who wish to limit or deny recognition of conscientious objection rely on the woman's rights to life and health: see, e.g., O'Rourke, Anne et al. , Abortion and Conscientious Objection: The New Battleground, 38 Monash Law Review 87119, 104–06 (2012); Dickens, Bernard M., Legal Protection and Limits of Conscientious Objection: When Conscientious Objection is Unethical, 28 Medicine and Law 337–47, 338–39, 343 (2009).

67 Bertelsen, supra note 45, at 126.

68 Weinstock, supra note 64, at 9.

69 Kassner & Lefkowitz, supra note 29, at 595. See also Matheny Antommaria, Armand H., Conscientious Objection in Clinical Practice: Notice, Informed Consent, Referral, and Emergency Treatment, 9 Ave Maria Law Review 8199, 82 (2010).

70 Smith, supra note 37, at 936; see also Pellegrino, supra note 34, at 228.

71 Senate Standing Committee on Constitutional and Legal Affairs Report, Conscientious Objection to Conscripted Military Service 1985 (Cth) 7.

72 Id.

73 Smith, Steven D., The Tenuous Case for Conscience, 10 Roger Williams University Law Review 325–58, 338 (2005). See also Kassner & Lefkowitz, supra note 29, at 596.

74 Smith, Steven D., The Promise and Perils of Conscience, Brigham Young University Law Review 1057–67, 1064 (2003).

75 Wardle, Lynn D., Protection of Health-Care Providers’ Rights of Conscience in American Law: Present, Past, and Future, 9 Ave Maria Law Review 146, 11 (2010).

76 McLeod, Carolyn, Taking a Feminist Relational Perspective on Conscience, in Being Relational: Reflections on Relational Law and Health Law 161–81, 161 (Downie, Jocelyn & Llewellyn, Jennifer J. eds., 2012).

77 Id. at 172.

78 Wicclair, Mark, Conscientious Objection in Healthcare and Moral Integrity, 26 Cambridge Quarterly of Healthcare Ethics 717, 7 (2017).

79 Senate Standing Committee, supra note 71, at 29–30.

80 Parkinson, Patrick, Accommodating Religious Belief in a Secular Age: The Issue of Conscientious Objection in the Workplace, 34 University of New South Wales Law Journal 281–99, 294–95 (2011) (citations omitted).

81 Harmon, supra note 44, at 160.

82 Sifris, Ronli, Tasmania's Reproductive Health (Access to Terminations) Act 2013: An Analysis of the Conscientious Objection to Abortion and the “Obligation to Refer,” 22 Journal of Law and Medicine 900–14 (2015).

83 Greenawalt, supra note 53, at 107.

84 Arthur, Christian Fiala & Joyce H., “Dishonourable Disobedience”—Why Refusal to Treat in Reproductive Healthcare is Not Conscientious Objection, 1 Woman—Psychosomatic Gynaecology and Obstetrics 1223, 20 (2014).

85 Sifris, supra note 82, at 910.

86 Shaw, Dorothy, Best Practice and Research, 24 Clinical Obstetrics and Gynaecology 633–46, 638–42 (2010). See also Sifris, Ronli & Belton, Suzanne, Australia: Abortion and Human Rights, 19 Health and Human Rights Journal 209–20, 210 (2017).

87 See, e.g., Sifris & Belton, supra note 86.

88 Savulescu, Julian, Conscientious Objection in Medicine, 332 British Medical Journal 294–97, 295 (2006).

89 Fiala & Arthur, supra note 84, at 20.

90 Fovargue, Sara & Neal, Mary, “In Good Conscience”: Conscience-Based Exemptions and Proper Medical Treatment, 23 Medical Law Review 221–41, 229 (2015).

91 Stahl, Ronit Y. & Emanuel, Ezekiel J., Physicians, Not Conscripts—Conscientious Objection in Health Care, 376 New England Journal of Medicine 1380–85, 1383 (2017).

92 Good Medical Practice Code, supra note 11, § 2.3, at 6.

93 Schuklenk, Udo & Smalling, Ricardo, Why Medical Professionals Have No Moral Claim to Conscientious Objection Accommodation in Liberal Democracies, 43 Journal of Medical Ethics 234, 236 (2017).

94 Fovargue & Neal, supra note 90, at 230 (citations omitted):

(i) the position held must be sincere; (ii) it must fit within a coherent system of ethical belief; (iii) it must be consistent with the H[ealth] C[are] P[rovider]’s other beliefs and actions, particularly those in proximate areas of concern; (iv) it must be key or fundamental in the sense that its violation poses a serious risk to the HCP's moral integrity; (v) reasonable alternatives must have been considered so that the exercise of a CBE [conscience-based exemption] is a “last resort”; (vi) the HCP seeking the CBE must be able to “articulate the basis of [her] position”; (vii) the rationale must reflect a valid view of the ends/goals of medicine; (viii) the position must not be intolerant or disrespect the different conscientious conclusions of others; and (ix) the objection must be to the treatment, rather than to the individual patient.

95 See, e.g., Greenawalt, supra note 53, at 97.

96 de Costa, Caroline, Abortion Law, Abortion Realities, 15 James Cook University Law Review 622, 20–21 (2008).

97 Sifris, Ronli, The Legal and Factual Status of Abortion in Australia, 38 Alternative Law Journal 108–12, 112 (2013).

98 The following statutes enshrine abortion as a crime: Crimes Act 1900 (NSW) ss 82–84; Criminal Code 1899 (Qld) ss 224–26; Criminal Law Consolidation Act 1935 (SA) ss 81–82; Criminal Code Act Compilation Act 1913 (WA) s 199 (though this is subject to s 334 of the Health Act 1911 (WA)). See also Sifris, Ronli, A Woman's Right to Choose: Human Rights and Abortion in Australia, in Contemporary Human Rights Issues in Australia 251273, 251 (Gerber, Paula & Castan, Melissa eds., 2013).

99 Bernadette Richards & Jennie Louise, Medical Law and Ethics: A Problem-Based Approach 35 (2014).

100 Cook, Rebecca J. & Dickens, Bernard M., Human Rights Dynamics of Abortion Law Reform, 25 Human Rights Quarterly 159, 12 (2003).

101 Id. at 21; de Costa, supra note 96, at 21.

102 Pesce, Andrew, Abortion Laws in Australia: Time for Consistency?, 29 University of New South Wales Law Journal 224–26, 224 (2006).

103 See, e.g., Criminal Law Consolidation Act 1935 (SA) s 82A; see also Sifris, supra note 97, at 110.

104 See, e.g., Health Act 1993 (ACT) pt 6.

105 For more on the place of abortion within the human rights paradigm, see Zampas, Christina & Gher, Jaime M., Abortion as a Human Right—International and Regional Standards, 8 Human Rights Law Review 249–94 (2008).

106 New South Wales and Queensland rely on the common law.

107 Health Act 1911 (WA) s 334.

108 Health Act 1993 (ACT) s 84.

109 Criminal Law Consolidation Act 1935 (SA) s 82A(5).

110 Id. s 82A(6).

111 Explanatory Memorandum, Abortion Law Reform Bill 2008 (Vic) 3.

112 Victoria, Parliamentary Debates, Legislative Assembly, 19 August 2008, 2954 (Maxine Morand, Minister for Women's Affairs).

113 Reproductive Health (Access to Terminations) Bill 2013 (Tas) pt 2 s 7(2).

114 Reproductive Health (Access to Terminations) Act 2013 (Tas) pt 2 s 7(2).

115 Good Medical Practice Code § 2.4.6, at 7, Mar. 17, 2014.

116 Reproductive Health (Access to Terminations) Act 2013 (Tas) s 6(3) pt 2.

117 Termination of Pregnancy Law Reform Act 2017 (NT) s 11 pt 2.

118 Health Insurance Act 1973 (Cth) s 132A pt 7.

119 Health Insurance Regulations 1975 (Cth) r 29.

120 Id. at rr 29(2)–(3).

121 Wendy Larcombe, Rights and Responsibilities of Conscientious Objectors under the Abortion Law Reform Act 2008 (Vic), Paper presented at ‘W(h)ither Human Rights’: 25th Law and Society Association Australia and New Zealand Conference (December 2010), at 6.

122 Legislative Council Government Administration Committee “A,” Report on Reproductive Health (Access To Terminations) Bill 2013 (Tas) 54–58 (2013).

123 See, e.g., Sifris, supra note 82.

124 Reproductive Health (Access to Terminations) Act 2013 (Tas) s 7.

125 Under the National Law possible sanctions include cautions, the imposition of conditions, fines, and the suspension or cancellation of registration. See Health Practitioner National Law Act 2009 (Qld) s 196. This was adopted in Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 4.

126 Mendelson, Danuta, Decriminalisation of Abortion Performed by Qualified Health Practitioners under the Abortion Law Reform Act 2008 (Vic), 19 Journal of Law and Medicine 651–66, 662 (2012).

127 Chervenak, Frank A. & McCullough, Laurence C., The Ethics of Direct and Indirect Referral for Termination of Pregnancy, 199 American Journal of Obstetrics and Gynecology 232.e1–e3, 232.el (2008).

128 Id. at 232.e2.

129 Parkinson, Patrick, Christian Concerns about an Australian Charter of Rights, 15 Australian Journal of Human Rights 83122, 105 (2010).

130 Greg Craven, Denying People Right to Conscience Akin to Fascism, The Age (Sept. 26, 2008), http://www.theage.com.au/news/opinion/denying-people-right-to-conscience-akin-to-fascism/2008/09/25/1222217428407.html?page=fullpage.

131 See, e.g., Larcombe, supra note 121; O'Rourke et al., supra note 3, at 108.

132 Larcombe, supra note 121.

133 Sifris, supra note 82, at 906.

134 See discussion in section titled “What is Conscientious Objection?” above.

135 Morgan, Jenny, Abortion Law Reform: The Importance of Democratic Change, 35 University of New South Wales Law Journal 142–74, 162 (2012).

136 Id. at 159.

137 Ministry of Health, New South Wales Government, Policy Directive No. PD2005_587, Pregnancy—Framework for Terminations in New South Wales Public Health Organisations § 4.2, at 5 (2005).

138 National Health Service (General Medical Services) Regulation 1992 r 12 (Eng. & Wales).

139 See explanation available at How to Register With a GP Practice, National Health Service, http://www.nhs.uk/NHSEngland/AboutNHSservices/doctors/Pages/NHSGPs.aspx (last visited Jan. 13, 2016).

140 Victorian Law Reform Commission, Law of Abortion: Final Report 113 (2008) (citations omitted).

141 Id. (citing Abortion Services in New Zealand, http://www.abortion.gen.nz/about.html).

142 Hallagan v. Medical Council of New Zealand HC Wellington CIV 2010-485-222, 2 December 2010 at paras. 31–34 (N.Z.).

143 Victorian Law Reform Commission, supra note 140, at 114.

144 Id.

145 Senate Standing Committee, supra note 71, at 18.

146 Id. at 10.

147 Voluntary Euthanasia Bill 2012 (SA) cl 12. This bill failed to garner sufficient parliamentary support. A similar broad exemption can be seen in the short-lived Northern Territory Act, Rights of the Terminally Ill Act 1995 (NT) s 5. See also Voluntary Euthanasia Bill 2010 (WA) (lapsed) cl 5; Voluntary Assisted Dying Bill 2013 (Tas) (failed) cl 31(2)(d); Rights of the Terminally Ill Bill 2013 (NSW) (negatived) cl 5.

148 New South Wales, Parliamentary Debates, Legislative Council, 2 May 2013, 19869 (Cate Faehrmann, Member of Legislative Council).

149 For example, this is the likely effect of the law in Sweden where conscientious objection to abortion is not permitted under the law. See Heino, Anna et al. , Conscientious Objection and Induced Abortion in Europe, 18 European Journal of Contraception and Reproductive Health Care 231–33, 232–33 (2013).

150 Fiala & Arthur provide an example of this perspective. They argue that refusing to refer for abortion should be deemed to be “dishonourable disobedience” rather than “conscientious objection”: Fiala & Arthur, supra note 84, at 20.

151 For a current copy of the State/Territory Nominated Occupations List detailing occupations deemed to be in shortage, see ANZSCO Occupations, Acacia Immigration Australia, https://www.acacia-au.com/STNOL.php (last updated Aug. 3, 2017).

152 Goodrich, supra note 54, at 123.

153 Schwartz, Martha S., “Conscience Clauses” or “Unconscionable Clauses”: Personal Belief Versus Professional Responsibilities, 6 Yale Journal of Health Policy, Law, and Ethics 269350, 277 (2006).

154 Good Medical Practice Code, § 2.3m at 6, Mar. 17, 2014.

155 Id. § 2.4.4, at 6, § 2.4.6, at 7.

156 See the discussion later in this section on the U.K. case of Doogan v. Greater Glasgow Health Board [2013] CSIH 36 (appeal taken from Scot.); Greater Glasgow Health Board v. Doogan [2014] UKSC 68 (appeal taken from Scot.).

157 Health Insurance Act 1973 (Cth) s 132A.

158 Health Insurance Regulations 1975 (Cth) r 29.

159 Id. at rr 29(2)–(3).

160 See, e.g., the text corresponding to note 140 which particularizes the nature of the referral process in the medical context. It is clear from this that referral requires involvement from the original doctor.

161 Davies, John K., Conscientious Refusal and a Doctor's Right to Quit, 29 Journal of Medicine and Philosophy 7591, 82 (2004).

162 Genuis, S.J., Dismembering the Ethical Physician, 82 Postgraduate Medical Journal 233–38, 234 (2006).

163 Cited in Whitcomb, Erin, A Most Fundamental Freedom of Choice: An International Review of Conscientious Objection to Elective Abortion, 24 St. John's Journal of Legal Commentary 771809, 794 (2010) (citation omitted).

164 Antommaria, supra note 66, at 85–86. See also Kaczor, Christopher, Conscientious Objection and Health Care: A Reply to Bernard Dickens, 18 Christian Bioethics: Non-Ecumenical Studies in Medical Morality 5971, 65 (2012).

165 Greater Glasgow Health Board v. Doogan [2014] UKSC 68 [38] (appeal taken from Scot.).

166 Doogan v. Greater Glasgow Health Board [2013] CSIH 36 [38] (appeal taken from Scot.).

167 Oderberg, David S., Further Clarity on Cooperation and Morality, 43 Journal of Medical Ethics 19, 9 (2016).

168 Rowe, Heather J. et al. , Considering Abortion: A 12-Month Audit of Records of Women Contacting a Pregnancy Advisory Service, 190 Medical Journal of Australia 6972, 71 (2009) (Access issues reported were “financial or health problems, geographical isolation, lack of transport or child care, being at school, safety fears, alcohol or drug problems, or language or interpreter concerns.”).

169 Evidence to Legislative Council Sessional Committee Government Administration “A,” Parliament of Tasmania, 3 September 2013, 5 (Glynis Flower, Executive Officer of the Hobart Women's Health Centre).

170 Id. at 2.

171 International Planned Parenthood Federation European Network (IPPF EN) v. Italy, App. No. 87/2012 (European Committee of Social Rights) (2012).

172 World Medical Association, Declaration of Oslo on Therapeutic Abortion, adopted by the 24th World Medical Assembly, Oslo, Norway, Aug. 1970 (amended by the 35th World Medical Assembly, Venice, Italy, Oct. 1983; 57th WMA General Assembly, Pilanesberg, South Africa, Oct. 2006).

173 Office of the High Commissioner for Human Rights, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art. 18) at ¶3, U.N. Doc. CCPR/C/21/Rev.1/Add.4 (July 12, 1993).

174 See, e.g., Getting an Abortion, Children by Choice, https://www.childrenbychoice.org.au/forwomen/abortion/howtogetanabortion (last modified Jan. 11, 2018) (“[n]o referral is needed for either a GP or a private clinic for a medication abortion” and that “[n]o referral is needed for a clinic for a surgical abortion.”).

175 See, e.g., Kibsgaard Nordberg, Eva M. et al. , Conscientious Objection to Referrals for Abortion: Pragmatic Solution or Threat to Women's Rights, 15 BMC Medical Ethics 19, 1 (2014).

176 Fiala & Arthur, supra note 84, at 15.

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MEDICAL REFERRAL FOR ABORTION AND FREEDOM OF CONSCIENCE IN AUSTRALIAN LAW

  • Joanne Howe (a1) and Suzanne Le Mire (a2)

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