New Zealand abortion activists complain about physician freedom of conscience

Dr. Joseph Lee, a physician in Blenheim, New Zealand, has been criticized by abortion activists because he refused to prescribe contraceptives for a 23 year old patient.  Dr. Lee practises at the Wairau Community Clinic.  A pamphlet in the reception area advises patients that some of the clinic’s physicians will not prescribe contraceptives, and staff attempt to direct patients accordingly.  The clinic leader may consider installing a sign to minimize further conflicts.

Dr. Lee identifies himself as a Catholic, but is reported to have said that he would be willing to prescribe the birth control pill to a woman who was spacing children or had had at least four children.  That is not consistent with the teaching of the Catholic Church on the subject, and it is an unusual position among health care workers who object to providing contraception.

The Abortion Law Reform Association NZ (ALRANZ) wants the General Medical Council to force objecting physicians to refer patients or otherwise assist them to obtain morally contested services.  The president of ALRANZ, Dr. Morgan Healey, claims that a High Court decision in 2010 has made the question of referral legally ambiguous. [New Zealand Herald]

However, Justice Alan MacKenzie of the High Court in Wellington, New Zealand,unambiguously ruled that New Zealand’s Contraception, Sterilisation and Abortion Act protected objecting physicians, and that the General Medical Council could not force them to refer abortion.  All that is required of a physician who objects to abortion is to decline to begin the process and inform his patient that she may obtain the procedure from another practitioner.  The protection of conscience provision states that objecting health care workers are not obliged “To fit or assist in the fitting, or supply or administer or assist in the supply or administering, of any contraceptive, or to offer or give any advice relating to contraception.”  The ruling was the result of litigation by the New Zealand Health Professionals Alliance, which, earlier this year established a website to support freedom of conscience for health care workers.

 

Irish Bishops’ briefing note on the Protection of Life During Pregnancy Bill 2013

The Catholic bishops of Ireland have sent a briefing note to the Oireachtas (Irish parliament) concerning the controversial Protection of Life During Pregnancy Bill 2013.  Among the criticisms of the bill was the following reference to the bill’s protection of conscience provision:

3.      The Bill also creates a number of serious moral, legal and Constitutional conflicts in the area of freedom of conscience and religious belief, notably:

A.  The Bill provides for conscientious objection by ‘any medical practitioner, nurse or midwife’ only. It excludes others who may be obliged to co-operate in providing abortion services against their conscience or religious belief. This is in contrast to the wording of the proposed Protection of Human Life in Pregnancy Bill 2001, which provided for conscientious objection by ‘any person’ carrying out or assisting in an abortion. The operation of this clause is also unacceptable because it involves a form of co-operation in evil by obliging those who conscientiously object to knowingly put the patient in to the care of medical personnel who will carry out an abortion. In effect, therefore, medical personnel are being given no choice but to cooperate in an abortion. This is in contrast to the practice in many other countries which ask only that the patient be handed over to the care of other medical personnel. Limiting the scope of conscientious objection in this way is potentially in conflict with Article 44.2.3 of the Constitution, which states that: “The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status”, with the general direction of legal interpretation of Article 9 of the European Convention on Human Rights and with recent UK based cases such as Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36.

B.  Article 44.2.3 also raises important questions of principle about the application of the Party Whip system to oblige members of the Oireachtas to vote in favour of this legislation, against their religious conscience. It may even open the possibility of a Constitutional challenge to the legislation itself on the basis of an un-constitutional legislative process.

C.  The obligation on ‘appropriate institutions’ identified by the Minister to provide abortion services may be in conflict with existing legal arrangements and, in some cases with Article 44.2.5 of the Constitution, which states that: “Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes”.

People need to be free to act on their conscience

Irish Examiner

Dónal O’Mathúna

CONSCIENTIOUS objection is a hugely important concept. On fundamental ethical issues, like life and death, people should have the freedom to act on their conscience.

This applies to those legislating on abortion and providing access to abortion. The Protection of Life During Pregnancy Bill 2013 allows conscientious objection, but in the most limited way. Its provisions are more restrictive than in many other jurisdictions, which carries a chilling message. . .

. . . Forcing people to violate their conscience risks bending or breaking the moral compass that guides them. Therefore, legislators should be free to vote on this legislation according to their conscience. And anyone working in hospitals providing abortions should be able to consciously object to being involved. [Full text]

Protection of Conscience Project Bimonthly Update

By Region/Country

Australia

A physician in Melbourne, Australia, has openly defied the State of Victoria law that requires physicians who object to abortion to refer patients to colleagues who will provide the service.  Dr. Mark Hobart refused to refer a couple who wanted to abort a girl because they wanted a boy. [Newstalk]

Canada

The government of Quebec has introduced a bill to legalize euthanasia in the province, despite the continuing criminal prohibition of the procedure.  An Act respecting end-of-life care (Bill 52) is intended to permit physicians, in defined circumstances, to kill their patients as part of the redefined practice of medicine (“medical aid in dying”; MAD). However, the procedure cannot become part of medical practice in Quebec unless the medical profession itself (broadly speaking) formally accepts it and delivers it through the structures and powers established for the delivery of health care. If Bill 52 passes, health care providers and others who want no part of euthanasia will find their working environments increasingly controlled by a MAD matrix functioning within this system.  Moreover, having formally approved of euthanasia, the medical establishment will be at particular pains to defend and enforce the decision. In the end, freedom of conscience for Quebec health care workers who object to euthanasia may come to mean nothing more than the freedom to find another job, or the freedom to leave the province. [See Redefining the practice of medicine: Winks and nods and euthanasia in Quebec]

European Union

The Observatory on Intolerance and Discrimination against Christians released a report describing 41 examples of national laws with adverse effects on Christians in more than 15 European Countries. Additionally, 169 cases of intolerance against Christians in the EU – area in 2012 are portrayed.  The Holy See has denounced European discrimination against and intolerance of Christians.

Ireland

The Protection of Life During Pregnancy Act 2013 will permit abortions when there is a “real and substantial risk” to the life of a woman by reason of physical illness or suicidal ideation. The Act  includes a protection of conscience provision that is limited to medical practitioners, midwives and nurses.  A provision that denied freedom of conscience to institutions has been dropped.  However, no conscientious objection will be allowed in emergencies when the mother’s life is in immediate danger.

It is far from certain how much difficulty the mandatory referral requirement will cause, since the Act envisions abortion only in circumstances involving a substantial risk to the mother’s life.  This is very rare, and in such circumstances there is much less likelihood of conscientious objection, so the provision may not prove to be troublesome in practice.

On the other hand, government comments accompanying the earlier “heads of bill” noted that medical practitioners do not need to be of the opinion that the risk to the woman’s life “is inevitable or immediate.” The more broadly this interpretation is construed, the more likely it is that conflicts of conscience will occur, and the greater will be the surrounding controversy.  Irish physicians speaking to an early draft of the legislation expressed differences of opinion about grounds for abortion.

Italy

Large numbers of Italian obstetricians are reported to be refusing to provide abortion for reasons of conscience – up to 80% of practitioners in some areas. Critics are demanding that steps be taken to ensure “access to abortion,” which may generate pressure to suppress freedom of conscience. [RTE; Morning Ireland]

Netherlands

Only 400 of 20,000 Flemish physicians are trained to provide euthanasia.  It appears that most physicians do not want to be directly involved with it.  In consequence, the 400 are called upon frequently to provide the required second opinion and sometimes the lethal injection.  Confirming the reluctance of physicians to participate in the procedure, Dr. Sarah Van Laer complains that “there are too few doctors ready to perform euthanasia” and that this is a”badly underestimated problem.” [Bioedge]

Philippines

In order to simplify and expedite the hearing scheduled for 9 July to review the controversial Reproductive Health law, the Supreme Court of the Philippines has proposed that the petitioners for and against the bill concentrate on three constitutional themes during their oral submissions:

  • proscription of involuntary servitude
  • equal protection clause (right to life, freedom of religion, natural law)
  • freedom of speech (academic freedom)

The suggestion by the court to include the proscription of involuntary servitude as one of the constitutional themes could be interpreted two ways and could include arguments of two kinds. The first is a claim that compelling someone to do something contrary to his conscientious convictions is a form of involuntary servitude. The second is a claim that a pregnancy that results from difficulty accessing contraception and/or abortion is a form of involuntary servitude.  In either case, the reference to the constitutional proscription of involuntary servitude is of particular interest because of a similar proscription in the 13th Amendment to the Constitution of the United States.

United Kingdom

The Family Planning Association has encouraged women to leave a medical practice in south London after anonymous complaints were reported in the media that some physicians in the clinic are unwilling to prescribe the morning-after pill for reasons of conscience. [The Independent]

The National Health Service of Greater Glasgow and Clyde, regional provider of state health care, will attempt to overturn an appeal court ruling favourable to freedom of conscience for health care workers by appealing to Britain’s Supreme Court.  Two midwives who, for reasons of conscience, refused to participate in the supervision and support of staff providing abortions successfully appealed a lower court ruling against them.  The judgement of the appeal court was given in April.  [Irish Post]

A bill introduced in the House of Lords by Lord Falconer proposes to legalize assisted suicide.  It includes a protection of conscience provision to protect those who do not wish to participate  in the procedure.  Participation is the central issue in the midwives case noted above.

United States

The Department of Health and Human Services has confirmed a regulation that will require businesses with over 50 employees to provide health insurance for birth control and surgical sterilization, even if they object to doing so for reasons of conscience.  The regulations includes exemptions for objecting “religious employers” (largely limited to houses of worship) and objecting religious non-profit organizations.  Nonetheless, the continued demand that objecting business owners be forced to comply and the nature of the exemptions remain unacceptable to many religious organizations.  Catholic and Baptist leaders have collaborated in writing a letter of protest to Congress.  American Catholic bishops have been adamant that the HHS regulation is unacceptable. There are now 61 civil suits filed against the regulation, with over 200 plaintiffs. [Becket Fund, HHS Information Central]. The Archdiocese of New York is among the plaintiffs in the lawsuits.  However, the Archdiocese  has, for years, been indirectly paying for health insurance for employees of the Catholic Health Care System that includes coverage for contraception and abortion. [New York Times]

A North Carolina bill that proposes to modify laws pertaining to abortion health insurance coverage includes a protection of conscience provision for health care workers and health care institutions.  In Vermont, a new assisted suicide law allows for protection of conscience for health care workers and somewhat more limited protection for health care  facilities.

 Recent Postings

Personal Opinions and Ideology, Not “Science”.  From Conscience and its Enemies: Confronting the Dogmas of Liberal Secularism, by Robert P. George

A “medical misadventure” in Ireland: Deaths of Savita & Prasa Halappanavar.  University Hospital, Galway, Ireland (21-28 October, 2012)

Protection of Life During Pregnancy Act 2013 (Ireland) (Extracts pertaining to freedom of conscience)

Draft Irish Abortion Law: Protection of Conscience- Testimony before the Joint Committee on Health and Children Houses of the Oireachtas (Tithe an Oireachtais) Dublin, Ireland 17-21 May, 2013

Draft Heads of Bill for Irish abortion law: Protection of Life During Pregnancy Bill 2013 (Extracts pertaining to freedom of conscience)

What Role does Conscience play in Medical Ethics? Presentation to the Association of Catholic Doctors, Dublin, 27 September, 2008.

Redefining the practice of medicine: Winks and nods and euthanasia in Quebec.  Commentary on Bill 52: An Act respecting end-of-life care (June, 2013)

U.S. Senate, Bill S1204 (2013) Health Care Conscience Rights Act

North Carolina, USA: House Bill 730 (2013) Insurance & Health Care Conscience Protection

Vermont, USA: Protection of conscience provision in assisted suicide statute

United Kingdom: Assisted Dying Bill (HL Bill 24) (protection of conscience provision)

 Publications of Interest

O’Rourke A, De Crespigny L, Pyman A. Abortion and Conscientious Objection: The New Battleground.  Abstract:  This paper examines the vexed issue of conscientious objection and abortion. . .We argue that the unregulated use of conscientious objection impedes women’s rights to access safe lawful medical procedures. As such, we contend that a physician’s withdrawal from patient care on the basis of conscience must be limited to certain circumstances. . .the ‘obligation to refer’ in ALRA is consistent with international practice and laws in other jurisdictions. . .

Observatory on Intolerance and Discrimination Against Christians in Europe: Legal Restrictions Affecting Christians / Report 2012

Murphy S, Genuis SJ, “Freedom of Conscience in Health Care: Distinctions and Limits.”  Journal of Bioethical Enquiry, June, 2013

Fernandez-Lynch H, “Discrimination at the doctor’s office.”  N Engl J Med 2013; 368:1668-1670 May 2, 2013DOI: 10.1056/NEJMp1211375

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Update on American HHS controversy

The Department of Health and Human Services has confirmed a regulation that will require businesses with over 50 employees to provide health insurance for birth control and surgical sterilization, even if they object to doing so for reasons of conscience.  The regulations includes exemptions for objecting “religious employers” (largely limited to houses of worship) and objecting religious non-profit organizations.  However, the continued demand that objecting business owners be forced to comply and the nature of the exemptions remain unacceptable to many religious organizations.  Speaking for the Becket Fund for Religious Liberty, Eric Rassbach, Deputy General Counsel, said:  

When it comes to religious liberty, the Department of Health and Human Services is acting like a kid who doesn’t want to eat his lima beans. Our Constitution and laws require them to protect religious exercise, but they really don’t want to, so they are trying every trick in the book to avoid doing so. But we will keep suing until the courts make HHS comply with its obligations. [Becket Fund News Release]

The U.S. House of Representatives Energy and Committee has issued a report accusing the Obama administration and Department of Health and Human Services of “unprecedented abuse” of religious liberty.

There are now 61 civil suits filed against the regulation, with over 200 plaintiffs. [Becket Fund, HHS Information Central].  In one of them, a unanimous decision by the10th Circuit Court of Appeals in Denver has directed a lower court allow a civil suit brought by Hobby Lobby, a chain of arts and crafts stores.  The owners of the company object to being forced to provide embryocidal forms of birth control.  They are seeking an injunction against the enforcement of the regulation [The Tennessean].  A Largo, Florida, company with the same objections has been granted a preliminary injunction [Tampa Tribune], as has Geneva College, a Christian college in Pennsylvania [NCR].

American Catholic bishops have been adamant that the HHS regulation is unacceptable, once again declaring a “Fortnight for Freedom” from 21 June to 4 July to encourage opposition to it and support for freedom of religion.  Timothy Cardinal Dolan, Archbishop of New York, has been one of the leading opponents of the law.  The Archdiocese of New York is among the plaintiffs in the lawsuits against the regulation.  However, the Archdiocese of New York has, for years, been indirectly paying for health insurance for employees of the Catholic Health Care System that includes coverage for contraception and abortion.  The arrangement was approved by Cardinal Dolan’s predecessor, Archbishop John O’Connor, who died in 2000.  A spokesman for the Archdiocese stated that the coverage is provided “under protest.”  [New York Times]