ABC
Doctors rights to abortion
Category: Legal Commentary
Why the abortion bill is a threat to freedom of conscience
Professor Michael Quinlan is Dean of Notre Dame Law School and a Freedom For Faith board member
The Reproductive Health Care Reform Bill 2019 which was introduced into the New South Wales Parliament on 1 August 2019 has attracted some media attention.
Since 1971 in NSW, it has been lawful to terminate a pregnancy where an honest belief is held that the procedure is “necessary to preserve the women involved from serious danger to their life, or physical or mental health.”
This Bill provides that the termination of any pregnancy up to 22 weeks will be permitted without restriction.
After 22 weeks, the Bill proposes that pregnancies may be terminated subject to certain conditions taking into account the woman’s “current and future physical, psychological and social circumstances.”
Freedom of Conscience and Religion
One part of the Bill which has not attracted much attention is the impact it has on the freedom of conscience and freedom of religion of registered health professionals.
In NSW, no referral is required to obtain a termination of pregnancy and information on the availability of such services is widely available on the internet.
Despite these facts, the Bill imposes a referral obligation on all registered health professionals who have a conscientious objection to disclose their conscientious objection to a person who asks them about those matters.
They must then refer the person or transfer their care to another health professional who they believe can provide the service and does not have a conscientious objection. In this way the Bill requires registered health professionals – which is a very broad group of people – who have a conscientious and often religiously grounded objection to participate in the procedure at least to the extent of a referral.
This is so, whether they object to abortion at all, or to abortion after a particular stage of gestation, or for sex-selection or disability grounds.
These obligations impact on all registered health professionals with conscientious objections but they are particularly onerous for Catholic health professionals because, in that tradition, participation in abortion causes an automatic excommunication from the Church.
If the State wishes to further liberalise the law in relation to the termination of pregnancy, it should not do so at the expense of health professionals with a conscientious or religious objection to participating in the procedure.
Hospitals and Health Industry in Limbo After Court Delays Implementation of “Conscience Rule”
Lexology
Regardless of whether organizations support or oppose the Conscience Rule, it is possible that it will become law on November 22 unless the courts and HHS move with uncharacteristic speed in a highly charged political arena.
Hospitals, health insurers and a variety of other healthcare entities do not have to be ready for a July 22 go-live date for the Trump administration’s “Conscience Rule.” Instead, the federal rule―designed to support health workers who opt out of providing patient care that violates their conscience, moral or religious beliefs―is facing such intense challenge in federal courts that the U.S. Department of Health and Human Services (HHS) agreed to a stipulated request to delay the effective date until November 22, 2019. . . [Full text]
“Do or Refer” Doctors Are Not Allowed to Use Their Best Judgment for Individual Patients (No More Jeanette Halls)
Yesterday, a doctor asked me about “do or refer” provisions in some of the newer bills seeking to legalize assisted suicide in the United States. For this reason, I now address the subject in the context of a 2018 Wisconsin bill, which did not pass.
The bill, AB 216, required the patient’s attending physician to “fulfill the request for medication or refer,” i.e. to write a lethal prescription for the purpose of killing the patient, or to make an effective referral to another physician, who would do it.
The bill also said that the attending physician’s failure to comply would be “unprofessional conduct” such that the physician would be subject to discipline. The bill states:
[F]ailure of an attending physician to fulfill a request for medication [the lethal dose] constitutes unprofessional conduct if the attending physician refuses or fails to make a good faith attempt to transfer the requester’s care and treatment to another physician who will act as attending physician under this chapter and fulfill the request for medication. (Emphasis added).[1]
The significance of do or refer is that it’s anti-patient, by not allowing doctors to use their best judgment in individual cases.
Consider Oregonian Jeanette Hall. In 2000, she made a settled decision to use Oregon’s assisted suicide law in lieu of being treated for cancer. Her doctor, Kenneth Stevens, who opposed assisted suicide, thought that her chances with treatment were good. Over several weeks, he stalled her request for assisted suicide and finally convinced her to be treated for cancer.
Yes, Dr Stevens was against assisted suicide generally, but he also thought that Jeanette was a good candidate for treatment and indeed she was. She has been cancer free for 19 years. In a recent article, Jeanette states:
I wanted to do our law and I wanted Dr. Stevens to help me. Instead, he encouraged me to not give up and ultimately I decided to fight the cancer. I had both chemotherapy and radiation. I am so happy to be alive!
If “do or refer,” as proposed in the Wisconsin bill, had been in effect in Oregon, Dr. Stevens would have been risking a finding of unprofessional conduct, and therefore his license, to help Jeanette understand what her true options were.
Is this what we want for our doctors, to have them be afraid of giving us their best judgment, for fear of sanction or having their licenses restricted or even revoked?
With proposed mandatory “do or refer,” assisted suicide proponents show us their true nature. They don’t want to enhance our choices, they want to limit our access to information to railroad us to death.
Notes
[1] AB 216 states:
156.21 Duties and immunities. (1) No health care facility or health care provider may be charged with a crime, held civilly liable, or charged with unprofessional conduct for any of the following:
(a) Failing to fulfill a request for medication, except that failure of an attending physician to fulfill a request for medication constitutes unprofessional conduct if the attending physician refuses or fails to make a good faith attempt to transfer the requester’s care and treatment to another physician who will act as attending physician under this chapter and fulfill the request for medication. (Emphasis added).
Margaret Dore is an attorney in Washington State where assisted suicide is legal. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia worldwide.
Australia needs to recognise conscience rights, not just religious rights
Steady on! What about atheists and agnostics?
Two problems with Scott Morrison’s proposed Religious Discrimination Bill. First, what does it mean for those who make a stand on conscientious, not religious, grounds? Why should our laws protect religious dissenters but not agnostic dissenters?
Second, does it effectively address the actual threats facing religious people? These are not threats to the freedom to worship but the freedom to speak one’s truth in the public square (not so, Izzy?) or educate one’s children in a faith-based school (not a ‘Safe School’) whose teachers uphold religious values.
Let me give two personal anecdotes of the overarching threat, whether to religious or irreligious people, which is the threat to free speech. Without free speech we cannot defend our deepest conscientious or religious convictions. . . {Full text]