In 2008, Victoria repealed all abortion related sections from the Crimes Act. Among the provisions of the Abortion Law Reform Act that attracted opprobrium from the approximately 4% of Australians who oppose abortion in all circumstances was section 8, the conscience clause.
Often misrepresented in public debates by opponents of legal abortion, the clause attempts to balance a woman’s rights (her right to autonomy, religious freedom, timely medical and reproductive healthcare) against an individual health practitioner’s right to conscientious refusal. It does this by requiring the practitioners to inform the woman of his objection and to refer the woman to a qualified practitioner who does not object.
Only in an emergency – where the refusal of the practitioners to perform an abortion means the woman will die – does the law deny practitioners an exemption to their standing obligation to treat.
Conflict over medical refusal rights is a red-hot issue across the world. This is because conscientious refusal is largely unregulated and, as a result, there has been an explosion of individuals and institutions refusing care to a growing pool of patients.
Among the myths about medical refusal is that only doctors and nurses invoke conscience as grounds for exemption to their prima facie duty to provide care. In fact, janitors, judges, pharmacists and clerical workers now number among those denying care. While most believe only individuals exercise the right to refuse care on grounds of conscience, in fact, health insurers and public hospitals do as well.
Abortion patients spring to mind when we think about patients being refused care, but in fact maternity, infertility and terminally ill patients – as well as those seeking contraception and victims of sexual assault – are also regularly denied care on grounds of conscience. And it’s not just treatment that patients are being refused, but information about their diagnosis, risks and treatment options necessary for them to make informed decisions about their care.
Medical refusals are not an abstract issue, but one with serious and real-world consequences for patients. For instance:
In Columbia, unregulated conscientious objection has resulted in a suicidal 13 year old girl raped by her 24-year old cousin being denied abortion by numerous doctors on “moral grounds.”
In Poland, unregulated conscientious action resulted in the death of Edyta. Edyta was diagnosed with a painful colon disease that her doctors refused to treat because she was two months pregnant. Eventually, having first miscarried the pregnancy, Edyta died.
This case followed hard on the heels of another Polish woman who sought an abortion after doctors advised it would worsen her already severe eye disease. The abortion was denied and, forced to deliver her third child, she became legally blind.
In the United States, Carla* sought an abortion of an early pregnancy, a procedure that first required the removal of a large uterine mass shutting off her colon and bladder. Her doctor refused to perform the procedure because of risks to the pregnancy. Forced to find another provider, the delay cost Carla her uterus and $40,000 in medical bills.
Another American woman was not so lucky. Nineteen weeks pregnant her membranes ruptured early and she became septic. But because the foetus still had a heartbeat, the ethics committee at St Mary’s hospital denied her an abortion. For ten days the patient lay dying in the Intensive Care Unit. By the time the foetus expired, the woman had developed pulmonary disease and is now oxygen dependent for life.
In Australia a pregnant woman scheduled to give birth at a Melbourne public hospital run by Catholic Health Australia was devastated when her membranes ruptured too early, dooming the pregnancy and her non-viable foetus. Denied both standard care options of medication to speed delivery or surgery to end the pregnancy – and unable to transfer to another hospital – she was forced to wait nearly a week until sepsis was diagnosed the foetus was removed.
In Peru, a 13 year old girl repeatedly raped by a 34-year-old neighbour attempted suicide by jumping off the roof of a building. Despite doctors concluding that her spine needed to be realigned immediately to avoid lifetime paralysis, they refused to perform the operation because she was pregnant. By the time she eventually suffered a miscarriage, it was too late to perform the spinal procedure, and the girl remains in a wheelchair.
The most shocking aspect of such cases is the indifference to them by legislators and religious institutions. In contrast, anti-choice advocates continue to crusade for ever-more generous exemptions to health workers' obligation to provide patient care, couching their demands in the language of freedom of religion and from discrimination.
For example, the 2008 United States Department of Health and Human Services regulations expanded the legal protections afforded to a wide range of refusing health care workforce participants including admissions, billing and janitorial staff.
Last year, the Parliamentary Assembly of the Council of Europe defeated a resolution that attempted to regulate the use of conscientious objection. Christian advocacy group CARE welcomed the Council of Europe vote, expressing dismay at regulations that would restrict the rights of medical practitioners to refuse participation in abortions, while failing to mention that the only instances where care exemptions would be denied was when they resulted in patients being seriously wounded or killed.
What is the answer? Conscience clauses like those in the 2008 Victorian Abortion Law Reform Act are a start, but they don’t go far enough.
Patients have a right to autonomy (from which the right to conscientious objection is derived) and to timely medical services that meets prevailing standards of care. Medical staff have autonomy rights as well as a standing duty to provide patient care.
How should these rights and responsibilities – when they conflict – be responsibly balanced? First, by both sides accepting a balance of rights approach is imperative and must be enforced by regulation. It is as wrong to say that people should not become doctors unless they are willing to provide all types of medical care as it is to oppose regulation that would stop patients paying with their health or lives to protect their medico’s conscience.
It is insulting and offensive for religious defenders of conscience to ignore the costs of unregulated conscientious action on patients, and to mislead the public about what those consequences are.
Balanced regulation – which must be backed up by transparent and effective oversight mechanisms – must make clear that only individuals have consciences, and so conscience rights. It must operate on the principle that healthcare workers can step away from participating in an activity to which they object, but cannot step in the way of patients accessing healthcare services that are lawful and to which they are entitled.
Twenty-one of Australia’s public hospitals are run by Catholic Health Australia, which promulgates ethical standards that require the denial of services to patients regardless of the risk such denials pose to the patient’s life or health.
At best, unregulated conscientious objection is an accident waiting to happen. At worst, and as seen around the globe, it is a sword wielded by the pious against the vulnerable with catastrophic results.
Unregulated conscientious refusal is a pressing problem from which we can no longer, in good conscience, look away.
The Questionable Ethics of Unregulated Conscientious Refusal ABC Religion & Ethics