New South Wales is on the cusp of reforming its decades-old abortion laws.
Reproductive Health Care Reform Bill 2019 which passed the State’s Legislative Assembly last week abolishes the triumvirate of criminal offences for abortion in the Crimes Act 1900 (ss 82-84), together with any residual common law liability for performing an abortion.
It creates a new offence for an unqualified person to perform or assist in the performance of an abortion.
New requirements for lawful abortion
The version of the Bill passed by the Legislative Assembly includes a number of requirements that were absent from the Bill as originally introduced by Independent MP Alex Greenwich.
The Bill follows Queensland legislation in authorising a medical practitioner to perform an abortion on a consenting woman who is not more than 22 weeks pregnant.
Before doing so, the doctor must consider whether the pregnant woman would benefit from counselling about the proposed abortion, and if so, must provide her with information about how to access such counselling, including publicly-funded counselling (s 7).
Beyond 22 weeks, an abortion may only be performed in a hospital or other approved facility (ss 6(1)(d), 12).
A woman seeking an abortion beyond 22 weeks must first consult a “specialist medical practitioner”, defined to mean a specialist registered in obstetrics and gynaecology, or alternatively – and rather vaguely – “a medical practitioner who has other expertise that is relevant to the performance of the termination, including, for example, a general practitioner who has additional experience or qualifications in obstetrics.”
The first specialist medical practitioner must consult with a second specialist medical practitioner and both must conclude that “in all the circumstances, the abortion should be performed”, having considered the pregnant woman’s medical circumstances, her current and future physical, psychological and social circumstances, and professional standards (s 6).
However, these requirements (including the requirement for the doctor to be a specialist) do not apply if the doctor believes that the abortion is necessary to save the woman’s life or save another foetus (s 6(4)).
The Bill authorises medical practitioners, nurses, midwives, pharmacists or Aboriginal and Torres Strait Islander health practitioners to assist in abortions in the practice of their health profession, provided they comply with the requirements summarised above (s 8).
Conscientious objectors
Then comes the bit about conscientious objectors.
The NSW Bill follows abortion liberalisation laws in other States, including Queensland, Victoria, and Tasmania, in recognising a medical practitioner’s conscientious objection to advising about, assisting or performing an abortion.
However, the Bill requires conscientious objectors who have been asked to perform or advise about an abortion to refer the woman to another medical practitioner (or health service) whom they believe “can provide the requested service and does not have a conscientious objection to the performance of the termination” (s 8).
To me, that looks a lot like compelling a doctor to participate in facilitating an abortion, irrespective of their moral beliefs.
The Bill is oddly worded, but s 10 appears to indicate that failure to perform one’s statutory duty and to refer a woman seeking an abortion to a medical practitioner who is happy to provide one, is something that can be taken into account in considering complaints made against that doctor to the Medical Council of NSW, or complaints to the Health Care Complaints Commission.
So why privilege the conscience of doctors when it comes to abortion, as distinct from treating abortion like any other medical service?
Stop and think about it.
Because abortion is only one of the most long-standing and bitterly contested medical ethics issues of all time, and medical practitioners who sincerely believe that abortion is morally wrong all or most of the time are hardly newcomers to the health system.
Because the foetus is not nothing – just ask the thousands of women out there who would do anything to fall pregnant, or stay pregnant – and if the foetus is not nothing then a medical practitioner ought to be given the moral space to decide whether and under what circumstances they will participate in the process that leads to killing it. As courts have said in other contexts, a foetus is not just tissue of the woman in the same way as, say, a diseased appendix or diabetic limb.
Rather than recognising that we live in a pluralistic society where fundamental disagreement persists around issues like abortion and assisted dying, the Bill adopts a triumphalist, winner-takes-all approach, presumably in order to eliminate obstacles to access.
It is hardly surprising that in Victoria, where a similar law was introduced in 2008, some conscientious objectors have not complied with their legal obligations.
Triumphalist legislation
The willingness of Australian Parliaments to liberalise abortion laws reflects the gradual strengthening of personal autonomy and individualism as dominant values in Australian life.
(Moral conservatives in the neoliberal camp, with their Thatcherite view of the world, their easy slogans like “personal responsibility” and “nanny state” have, ironically, helped to create the conditions where progressive abortion laws can now be passed).
But the point is that doctors have personal autonomy too. As professionals – meaning highly skilled and ethically reflective people with a commitment to the ideals of their profession – doctors have never been mere servants to the designs of their patients.
By all means over-ride a doctor’s conscience if an abortion is necessary to save the pregnant woman’s life. But otherwise, why threaten the right to practice of a doctor who, for deeply felt moral reasons, cannot participate in a referral system for killing unborn babies?
As I read the legislation, the Bill creates an offence for failing to refer a woman to another doctor who “does not have a conscientious objection to the performance of the termination” that has been requested in the circumstances.
It co-opts not only “right-to-lifers”, but others who believe that the moral status of an abortion depends on the circumstances.
A doctor might believe, for example, that terminating a foetus because it is a girl rather than a boy, is wrong.
In response to concerns about sex selection abortion, the Bill requires the Minister to conduct an inquiry on this issue within 12 months. However, it doesn’t exempt a doctor who might refuse to refer a couple who want to terminate their foetus because it is the wrong sex.
As it stands, most of the reforms in the Reproductive Health Care Reform Bill 2019 are welcome. But where is the public interest in requiring conscientious objectors to cross moral boundaries?
Some will feel that it ushers in religious discrimination.
And they won’t comply. They might well say: since when did the State have the authority to require me to be part of a referral system for killing the unborn?
Sydney Health Law 
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