Conscientious objection (CO) is a principle that has focused on a diverse range of issues including compulsory military service, assisted euthanasia, access to IVF and abortion. CO is defined as the refusal to provide or participate in legal medical procedures for which a practitioner is normally responsible based on moral or religious grounds. The right to CO in reproductive healthcare is currently legally recognised in some Australian jurisdictions. Additionally, the Australian Medical Association (AMA) upholds that ‘as a matter of last resort’ a doctor may refuse to provide or participate in legal medical treatments based on ‘sincerely-held beliefs and moral concerns’.1 CO requires a high threshold of personal conviction, although from the patient’s point of view, the barriers and harms can have the same effect.
Abortion is available in all Australian states, although there is significant variation between its legal status, barriers to access and geographical availability.2 Abortion is historically in the realm of criminal law and thus, under the jurisdiction of the States and Territories. Since Federation, they have variously enacted legislation and relied on common law interpretations, effectively creating varying degrees of decriminalisation and an ambiguous legal environment. Of import, not all states permit, from a practical point of view, ‘on-demand’ termination services.
Professional bodies within Australia and internationally also support access to termination services. RANZCOG recognises unplanned pregnancy as an important health issue and advocates for abortion to be available on the basis of a ‘healthcare need’3 with equitable access across jurisdictions. Likewise, the AMA, the International Federation of Gynaecology and Obstetrics and the World Health Organization have released position statements supporting women’s right to access safe and legal termination services.4 5 6
However, despite its general acceptance as a lawful procedure, almost all CO in medicine is exercised for abortion. In Australia, the right of doctors to conscientiously object to abortion is only recognised by six jurisdictions and is subject to limitations.7 8 For example, in Victoria and the Northern Territory, a CO practitioner has a legal duty to declare their status and refer a woman to another practitioner whom they believe does not conscientiously object. Thus, in these jurisdictions all medical practitioners are legally obligated to facilitate abortion. The law places limits on their ability to deny information to women based on their right to CO. Other states, such as New South Wales and Queensland have no specific legislative protections or requirements for CO. Four jurisdictions (Vic, SA, Tas and NT) specifically compel doctors to participate in abortion for the preservation of a pregnant woman’s life, regardless of their personal beliefs. In contradistinction, Western Australia is the only jurisdiction that recognises both an individual’s right and a hospital’s or institution’s right to CO.9
Professional standards dictated by the AMA10 and RANZCOG11 take the approach that while no health professional should be mandated to perform termination of pregnancy, individuals are professionally obliged to provide information and not hinder access to appropriate services.
What is the position of conscientious objectors?
CO in reproductive health came to the fore in the 1960s and 70s with the legalisation of abortion in the UK and US. The acceptance of CO is bolstered by ambiguous criminal laws for abortion, stigma surrounding the procedure and sexist traditional beliefs about women and motherhood. CO is considered by some to inherently weaken women’s reproductive rights and choices in healthcare; since it places more value on a doctor’s conscience over a female patient’s conscience.
The analogy with military service has been criticised as fallacious. Doctors choose their profession and enjoy positions of power and authority. In particular, they choose to work in women’s health when they train as obstetricians and gynaecologists. Whether they work in public or private settings, doctors are remunerated for providing healthcare regardless of any claims to CO or refusal to perform legal treatments. They are not punished for their CO. In fact, it is the woman who is harmed by not being able to exercise her autonomy, not to mention the physical and mental health effects she suffers from delay or inability to access treatment. In conscripted military service, a soldier makes no choice to join and is punished for his/her CO. Conscientious objectors against war do not join active military service voluntarily. The distinction in analogy with military service is important to commentators who criticise CO in reproductive health as a ‘dishonourable disobedience’ that is unethical and unprofessional.12
The acceptance of CO is not universal and indeed some consider it to have no role in modern medical practice. CO has been criticised as the injection of a doctor’s values into patient’s treatment alternatives and as a form of undesirable paternalism.13 For example, to obtain informed consent regarding pregnancy care, all valid alternatives including legal termination may need to be discussed in a non-judgmental manner. It seems likely that CO inherently introduces judgment and it is difficult to ascertain the burden or psychological damage which this imparts upon a patient.14 Savulescu has argued that the role of a doctor, particularly within a public health service, is the delivery of just and legal health services.15 Permitting moral values (religious or secular) or self-interest will increase inequity and inefficiency in the delivery of health services. Savulescu and Schuklenk16 assert that the law alone should determine the permissibility of a particular medical treatment and once enacted this requires all qualified health practitioners to provide that treatment in suitable circumstances. If a practitioner objects, their rights should be to protest changes in legislation rather than CO. Indeed, if a practitioner strongly believes that abortion is ‘inherently evil’, then referral to another practitioner in the knowledge they will perform the ‘inherently evil’ procedure can hardly be viewed as more morally permissible. Such a practitioner is morally impotent to work under democratically decided laws.
Entry into medical practice is voluntary and individuals should do so with an understanding of the normal scope of medical practice. Indeed, countries such as Finland and Sweden have no legal provision for CO.17 In the context of the Australian public health system, particularly emergency departments and outpatient clinics, patients cannot normally choose their practitioner. In rural and remote regions, choice of practitioner and health institution will be limited and CO has the potential to limit a patient’s right to access lawful healthcare. Despite increasing liberalisation of abortion laws, there has been an international trend towards increasing CO. In the UK, the Conscientious Objection (Medical Activities) Act 2017 is at the committee stage in the House of Lords and purportedly seeks to clarify and broaden the circumstances in which CO is acceptable.18 Proponents of the bill have raised the case of Greater Glasgow Health Board v Doogan and Another, where two senior midwives, who refused to support and supervise other staff members performing abortions, were ultimately found to have no statutory protection under a claim of CO. The British Medical Association, despite supporting CO in principle, has spoken out against this bill because of fears of patient harm associated with such an extension in a practitioner’s right to CO without adequate protection for patients. In the Australian context, studies have already demonstrated evidence of CO being a barrier to care, particularly in regional areas.19
Transparency and informed consent
CO provides particular challenges in training and public hospital service delivery by junior doctors. If every trainee is a conscientious objector then a termination service may be shut down. Should CO trainees declare their refusal to provide services to women in their CVs and at interviews? Should trainees who provide comprehensive care for women get paid more for their extra workload and responsibilities?
Female patients deserve fully informed consent when they are receiving medical care. Many women’s healthcare practitioners have websites and information pamphlets about their services. Perhaps practitioners should advertise their CO so women are aware of this restrictive aspect of their healthcare provision. Then women can choose their doctor accordingly, before any bill for medical services is paid. Perhaps public hospitals that do not provide termination services should likewise explain the pathways for referral (or lack thereof) for their female patients at the first attendance, allowing women to make informed choices about their pregnancies.
Internationally, high levels of CO in countries such as Italy and Brazil have become a significant barrier to women accessing care. Thus, support for CO only remains a viable option if a community believes in upholding women’s reproductive autonomy, when a sufficient number of practitioners are available and willing to provide the service. The validity of an individual’s CO is also important and currently Australian practitioners have no legal obligation to register or justify the basis of their objection. In Italy, there have been more than 200 prosecutions of gynaecologists conscientiously objecting in the public system while performing terminations in private practice20 Clearly, these cases fail the test ‘of sincerely held beliefs or moral values’. In Australia, only some state laws have ‘an obligation to refer’ and none specify that practitioners should be obliged to register or advertise this objection in advance of the request for termination care being made.
However, the precedence of law over all else, including ethical and moral considerations, gives no heed to the fallibility of law. A valid law is not always moral nor just. Historical examples of valid yet immoral laws can be found in Nazi Germany and the South African apartheid regime. The United Nations Universal Declaration of Human Rights states that everyone has the ‘right to freedom of thought, conscience and religion’.21 Although this right is not considered absolute, to view medical practitioners as merely instruments of the healthcare system might be considered a violation of their human rights. Significant emphasis has been placed by many authors on the importance of health practitioners’ right to ‘moral integrity’.22 Academic supporters of conscientious objection to abortion have claimed that, in states such as Victoria and Tasmania with more liberal access to termination on demand services, medical practitioners may be legally compelled to refer in circumstances where even the most strident supporters of abortion may feel conflicted. Walsh raises the thorny issue of women seeking termination-on-demand for social sex selection.23 In these states, maternal autonomy is paramount over all other factors and has the emphasis of imposing a state’s moral beliefs on all practitioners.
A doctor forced to perform treatments and procedures they believe to be wrong could reasonably be expected to experience feelings of loss of integrity, guilt and even leave the profession as a result.24 Forced indirect involvement in abortion care does not allow for recognition of the view that abortion is an amoral act or a practitioner’s position on ‘fetal rights’. However, as argued above, whether or not this is a valid argument for CO remains debatable. CO has a largely religious and non-verifiable basis, placing it in conflict with evidence-based medicine.
In conclusion, there appears to be significant sympathy to CO in reproductive healthcare in Australian law. This is in conflict with the provision of abortion services and maternal autonomy in some geographical areas and public and private hospitals. Should a woman’s right to treatment be limited by a health practitioner’s CO? The lack of national approach creates a complicated legal and ethical landscape. As a minimum, patients deserve the respect of informed consent and transparency about a practitioner’s conscientious objections at the earliest opportunity.