Originally published in Conscience Laws, June 2014
Presentation to the Life Dinner Melbourne, Australia
by David van Gend
I feel a little out of place coming from Queensland to speak about the wretched situation in Victoria: coming from a State where it is always sunny, where the people are always nice, and where we don’t have oppressive laws that try to compel the conscience of free citizens.
But we are all in this together: an assault on fundamental freedoms in one State will become a precedent for similar abuses in other States.
Uncivil society
It was a Melbourne man, Julian Savulescu, now an ethics professor at Oxford, who declared that doctors who will not provide abortion should be “punished through removal of license to practice”. He wrote in the British Medical Journal in 2006:
A doctors’ conscience has little place in the delivery of modern medical care. What should be provided to patients is defined by the law… If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors.1
Crucial to his argument is that, “when society has already decided that a service is legal”, it is not for doctors to “compromise the delivery of services”. When Savulescu’s article was discussed in 2006 in the medical newspaper Australian Doctor, I was given as an example of the sort of doctor who, in his view, “should either get out of the specialty or the profession altogether.”2 I gave a different angle to Australian Doctor: that abortion as commonly practiced is not a medical service; it is a “medical abuse” which doctors are bound by their Hippocratic principles and humane conscience not to commit.
And no law, no professional board, has the authority to compel any doctor to violate the principles of their vocation or mutilate their own conscience by collaborating in intentional killing.
Yet in Victoria, under section 8 of the Abortion Law Reform Act 2008,3 that compulsion by the authorities is exactly what doctors and nurses face.
Not long ago society was a little more civil and did not contemplate using the force of law to compel the conscience of fellow citizens.
Jennifer Jackson in the 2006 textbook, ‘Ethics in medicine’ writes that it is:
a hallmark of civilised society that we exercise tolerance towards people with whom we disagree deeply on moral or religious matters… that we find ways to avoid forcing people to disobey the dictates of their conscience.4
In the Journal of Medical Ethics (2009) Gerrard shows similar broad-mindedness, writing
Doctors, in common with other sections of the community, will hold views on abortion across a spectrum. For some, what draws them to practise medicine will be the same thing that informs their conscientious objection. I think very strong reasons would need to be brought forward before disallowing these doctors’ practice.5
That touches on the vital point that laws to disallow a doctor’s freedom of conscience are likely to deter the most conscientious young people from becoming doctors. Is that in the public interest? The anticipated ethical grief may be such that talented but tender-hearted young people choose a less hostile profession.
And what if the principle of section 8 is extended to other matters like euthanasia – as happened only last week in the Canadian province of Quebec which, as I understand, now requires doctors with a conscientious objection to euthanasia to refer their patient to another doctor who will do the job? And what if the principle of non-objection to abortion is extended to compulsory participation in abortion for all doctors in training? If abortion is merely another surgical procedure and conscientious objection is suppressed, how could a public hospital not require all medical students and trainee doctors to participate in abortion?
Of course, that is exactly what many hard-headed strategists would like to see: an ethical purge of sensitive, often religious, consciences from the medical profession, either through Savulescu’s proposed “removal of license to practice” or by deterring them at the outset.
When Piers Benn writes in ‘The role of conscience in medical ethics’ that, “to force someone to involve herself in what she deems morally terrible is a special kind of attack on her,” that is the voice of civility.6 But increasingly the uncivil people control the high ground of our culture, launching a ‘special kind of attack’ on those doctors and nurses who dissent from the culture of death. These people were the teenagers in the sixties corrupted by the sexual revolution but are now our academics sneering at conscientious objectors or politicians passing brutal laws.
Their agenda fulfils the sixties fantasy that people should be free to have sexual encounters with no unwanted consequence. The only way to guarantee sex without consequence is to guarantee the right to get rid of any and every unwanted baby. The passage of Victoria’s Abortion Law Reform Act 2008 marked victory, of sorts, in a forty year cultural battle, and to seal this victory the victors enacted section 8 to silence dissenters. Section 8 is a sinister and bullying measure designed to intimidate free speech as well as free conscience.
Free speech & free conscience
And of course these two fundamental freedoms are linked, because free speech – or free argument – is just the expression of free thought, and the thoughts that matter most to individuals are those formed out of deep conscientious conviction. So free speech is the expression of free conscience; they stand or fall together. As the great poet John Milton declared 400 years ago at the end of an impassioned speech to the British Parliament, “Give me the liberty to argue freely according to conscience, above all liberties”.
But doctors in this State have lost the liberty to argue freely according to conscience, let alone to practice freely according to conscience.
Medical ethicist Professor Nicholas Tonti-Filippini observed in The Age last November that section 8 has the power even to silence discussion about conscientious objection:
A doctor who merely discussed with other doctors on Facebook his intention not to refer has been brought before a panel of the Australian Health Practitioners Regulation Authority (AHPRA) and he was cautioned about unprofessional conduct….
The actions of AHPRA have made it a risk for doctors to publish the view that a doctor has the right to practice medicine according his or her own conscience where that involves not referring for abortion…
It is extraordinary that the law should compel a doctor to act against most codes of medical ethics… But it is even more extraordinary to be pursued by the regulator for what one says about this situation.7
And the noted human rights lawyer Frank Brennan SJ was scathing back in 2008 about the suppression of both free speech and free conscience in Victoria’s abortion law. In a powerful article entitled ‘The Right not to Kill’ he said,
One would have thought the right to freedom of thought, conscience and belief in the Victorian Charter of Rights and Freedoms would have counted for something when the legislators were considering the plight of those doctors and nurses who in good faith regard the abortion of a viable foetus as the moral equivalent of murder.
Ms Maxine Morand, the Victorian Minister for Women’s Affairs, has taken the view that all Charter rights and freedoms of all individuals are irrelevant when it comes to abortion because s.48 provides: ‘Nothing in this Charter affects any law applicable to abortion or child destruction’.
Presumably the Victorian Parliament could also pass a law prohibiting discussion about abortion if it so wished, without need for any assessment of the freedom of expression, given that such a prohibition would be contained in a law applicable to abortion. This makes a mockery of the Charter.8
The leading medical campaigner on this issue in Victoria, Dr Eamonn Matheson, puts it best, saying section 8 exists “to put fear into the hearts of doctors who practice medicine with a conscience and a morality different to the authors of this law”.
And so, on April 28th 2012 we read in the Herald Sun:
A MELBOURNE doctor who refused to refer a couple for an abortion because they wanted only a boy has admitted he could face tough sanctions… The couple had asked Dr Mark Hobart to refer them to an abortion clinic after discovering at 19 weeks they were having a girl when they wanted a boy. By refusing to provide a referral for a patient on moral grounds or refer the matter to another doctor, Dr Hobart admits he has broken the law and could face suspension, conditions on his ability to practice or even be deregistered. “I’ve got a conscientious objection to abortion, I’ve refused to refer in this case a woman for abortion and it appears that I have broken the rules,” he said.
This talk tonight is dedicated to that 19 week old baby girl who was put to death for the crime of being a girl, with the full blessing of Victoria’s evil laws. It is dedicated to Victorian doctors like Mark Hobart who are being harassed by the authorities because they refuse to collaborate with an oppressive law – a law which, in the judgement of Frank Brennan, former head of Australia’s Human Rights Consultation Committee, “carries the hallmarks of totalitarianism.”9
Victoria versus fundamental rights
How has it come to this, that a quarter century after the fall of Soviet Communism and nearly seventy years after the Nuremberg trials, a Victorian statute is described in terms usually reserved for dictatorships? Lawyer and University Vice-Chancellor Professor Greg Craven felt justified in labelling section 8 of the law as ‘fascist’. Professor Tonti-Fillipini agreed that “expecting a doctor to act against his conscience is totalitarian”, and the mild-mannered father of general practice in this country, Emeritus Professor John Murtagh, was moved to call section 8 “Stalinesque”.
Do Victorian politicians know no shame, to have provoked such condemnation by such thoughtful men, and to be presiding over the sort of tyrannical law that was more characteristic of our culture’s mortal enemies through a world war and a cold war?
Last week was the 70th anniversary of the D-Day landing, and I visited a 91 year old man in a nursing home who had flown a Lancaster bomber across the English Channel that day. His brother was shot down and never found. As I thought of the vast sacrifice required to deliver Europe from Hitler and his demonic forces, it struck me that these Australians did not lay down their life so that adults in Victoria seventy years later could enjoy the hard-won liberty of the Abortion Law Reform Act 2008.
After the horrors of the Nazi regime had become fully known, a temporarily contrite world searched its conscience and made a serious effort to reaffirm fundamental right and wrong: first in the Nuremberg code and then in the Universal Declaration of Human Rights (UDHR, 1948).
The preamble to the UDHR stresses the historical context:
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people; Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . . 10
The noble affirmation of fundamental human rights followed. Conscience had been required to rebel against the monstrous tyranny of the Nazi era; now the insights of a just conscience were to be enshrined in law “for all time”.
Top priority in the UDHR is given to freedom of conscience, as being central to the dignity of a rational creature. The opening Article states:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 18 reinforces the fact that reason and conscience are linked:
Everyone has the right to freedom of thought, conscience and religion.
Rational reflection on right and wrong is the essence of conscience. And concerning the rational reflection on the matter of abortion, Gerrard acknowledges:
It is a reasonable position to hold that killing is prima facie wrong, and will be a value we want all doctors to be aware of. Given the range of possible rational views on abortion, it may be expected that some doctors are going to extend this core value to interpret foetal life as coming under this purview.11
And likewise Benn acknowledges the reasonableness of doctors who oppose abortion:
Whatever our views on abortion, women’s rights and the metaphysical status of the embryo or foetus, we can see that the anti-abortion position does connect intelligibly with the core values of medicine.12
Once again, these are civil people who understand that a reasonable conscience is a non-negotiable element in the integrity of any person who would be a doctor or a nurse. Crush the conscience of a doctor or a nurse and you will end up with a diminished and disintegrated person as your confidant and healer.
Returning to the Universal Declaration: it was a sustained attempt at civility, at acknowledging the non-negotiable element of reason and conscience in the integrity of any free soul.
Importantly, the Universal Declaration drew on the philosophical tradition of natural law; it enunciated inalienable freedoms that are ours by virtue of being rational creatures, not by fiat of any political power. Our scholarly friend Rita Joseph in Canberra has written about one of the drafters of the Declaration, Charles Malik, head of UNESCO. He stressed that these rights were recognized as inherent to human nature, not subject to the spirit of the age:
It is not an accident that the very first substantive word in the text is the word “recognition”: “Whereas recognition of the inherent dignity and of the equal and inalienable rights, etc.” Now you can “recognise” only what must have been already there, and what is already there cannot, in the present context, be anything but what nature has placed there … Dignity and rights are natural to our being and are not the generous grant of some external power.
And that which government has no power to give, government has no power to take away.
Here is an assertion of immutable natural law against trends to redefine right and wrong according to the interest of the dominant collective.
But now the soulless collectivism that brutalised medical conscience three generations ago is brutalising it again.
Fundamental injustice
That collectivism is embodied in section 8, as an exercise in state power crushing individual conscience. In your campaign to get section 8 repealed may I suggest that you be unrelenting in condemning its totalitarian qualities, in that it compels citizens against their conscience to “collaborate in killing”; thereby violating the inviolable fundamental rights under the Universal Declaration.
You might take as a central quote the words of the U.K. House of Lords Select Committee on Medical Ethics in 1994 which declared: “the prohibition of intentional killing is the cornerstone of law and social relationships”. Highlight that phrase on every website and every section 8 letter to MPs; sky-write it across Melbourne.
By framing section 8 in terms of violating the very cornerstone of law and social relationshipswe will counter our opponents who try to dismiss our conscientious concerns as being merely “religious” and therefore faintly irrational. Savulescu scoffs at what he calls “mistaken values or religious values” and Melbourne doctor Lachlan de Crespigny complains about “the unjust practice of privileging conscience based on religious beliefs”.
You will not find one word in my talk today that argues from so-called “religious beliefs or values”, because opposition to intentional killing is not a merely religious matter. It is not some pedantic scruple of religious minds which a secular society may indulge or dismiss depending on how tolerant it feels. No: it is the foundation of human justice in all civilisations.
Intentional killing is the fundamental crime even in pagan society. Go to ancient Sumeria in 2000 BC and the legal Code of Ur-Nammu decrees, “If a man commits a murder, that man must be killed.” Read the ‘Book of the Dead’ in ancient Egypt in 1500 BC where the Righteous Soul declares, “I have not slain men.” Even the ruthless Vikings placed murderers “in Nastrond”, their version of Hell. None of this condemnation of killing is Judeo-Christian sentiment; it is the common sense of humanity.
So we must not let our outrage on section 8 be marginalised as “religious”, but must stand firm on the cornerstone of law and social relationships: that no citizen shall wrongfully kill, and no citizen shall be compelled against their conscience to collaborate in killing.
Core and ‘non-core’ conscience
The other rhetorical tactic of our opponents is to smudge the sharp outline of objection to abortion by lumping it in with less compelling cases of conscientious objection. So in the New England Journal of Medicine (2009) Cantor raises the scenario where a theatre nurse conscientiously objects to assisting at surgery “for an ectopic pregnancy.”13 That is absurd. Of course doctors and nurses must undertake surgery for ectopic pregnancy – I have done so myself – because the embryo is doomed and if we don’t act the mother might be doomed as well. The moral muddle of a theatre nurse who thinks there is an issue of conscience with ectopic pregnancy says nothing about the moral clarity of a theatre nurse who has an issue of conscience with abortion-on-demand.
Cantor’s essay mischievously confounds an objection to refer for abortion with an objection to refer for vaccinations, two scenarios of wildly different moral seriousness. And yet, playing into her hands, we have a doctor in Queensland who does refuse to provide childhood immunisation – on grounds, he says, of “conscientious objection”. But that is a misuse of the term. If some fringe practitioners refuse to offer vaccinations, that may be on grounds of misguided “clinical objection” but not on moral grounds of conscience. By calling this “conscientious objection” such doctors only debase the currency. And such careless claims to conscientious objection allows critics like Cantor to conclude that, “When broadly defined, conscience is a poor touchstone; it can result in a rule that knows no bounds”.
This is a problem. A recent paper in a Catholic bioethics journal entitled “Objective Reasons for Conscientious Objection in Health Care” recognised this problem, and acknowledged that there is a spectrum of seriousness in grounds for conscientious objection. The article differentiates between spurious objection based on idiosyncratic ideas and grave objection based on foundational values and principles:
Recognizing a general right to conscientious objection based on individual liberty, and thus a subjective right, could have negative consequences. Conscientious objection in health care settings should be fully protected, however, when the objection is based on principles that are fundamental to the medical profession and the legal system.14
There can be no principle more fundamental to the medical profession and the legal system than the principle of “the prohibition of intentional killing“. Therefore there can be no more fundamental ground for conscientious objection than an objection to intentional killing – yet section 8 has the extreme arrogance to deny even that ground for objection.
Ethics or Politics
Being arrogant wouldn’t matter if section 8 was toothless and unenforceable; but this is a clause with teeth.
When Mark Hobart told the Herald Sun back in 2012, “I’ve got a conscientious objection to abortion… and it appears that I have broken the rules,” it was reported that “Medical Practitioners Board spokeswoman Nicole Newton said doctors were bound by the law and a professional code of conduct.”15 And so it appears that the Medical Practitioners’ Board, AHPRA, is siding with the Savulescu principle: that if a medical procedure is legal, even if gravely immoral, a doctor must comply or be punished. That is how section 8 exerts its power.
I would have hoped that AHPRA Board members would say, ‘We have a conflict here between an outrageous law, indeed a totalitarian law, and the time-honoured professional principle of conscientious liberty, and we will not raise a finger to trouble such a doctor unless compelled to do so by government. And if we are compelled to do so by government, we will resign.’
That would have been a Board worthy of the medical profession and of a free society. But instead, AHPRA chose the path of soulless collectivism and interrogated Dr Hobart for refusing to send a 19-week baby girl to her death! The role of AHPRA is particularly disturbing because their pursuit of Dr Hobart – and of the other unnamed doctor who merely argued on Facebook against section 8 and abortion – is in defiance of their own official code of ethics, which doesacknowledge conscientious objection and does not insist on referral for abortion.
Indeed every medical code of ethics in this country stands on the side of Dr Hobart, and against section 8 and its enforcers from AHPRA.
The Australian Medical Association in Victoria has made this admirably clear, ever since 2008 and especially since the case of Dr Hobart. Only last year they stated:
AMA Victoria supports legislative reform which would remove the requirement that a doctor with a conscientious objection must refer a patient seeking advice or treatment in relation to abortion to a doctor who they know does not have a similar objection.
And the President of the AMA federally, Steve Hambleton, said last year:
The Victorian legislation is incongruous with the medical profession’s code of practice and appears to fail to recognise that doctors have rights too.
Premier Denis Napthine was initially impressed with this medical opposition to section 8, saying some years ago, “Health professionals of the highest calibre, with the highest levels of experience, are saying to us that clause 8 is fundamentally wrong… and clause 8 isfundamentally wrong”. He voted against the Abortion Law Reform Act in 2008. So how could he preside over such a law as Premier, and do nothing?
Perhaps the Premier can take courage from another conservative politician who died ten years ago last week. Ronald Reagan rejected the cowardly stance of détente with the Soviet Union and condemned the evil empire for what it was. Along with two other courageous figures, Mrs Thatcher and Pope John Paul II, he dared to confront this monstrous system and bring it down. He famously demanded, in front of that section of the iron curtain that divided Berlin, “Mr Gorbachev, tear down this wall”.
If the Premier of Victoria were to abandon the cowardly stance of détente to the monstrous evil of the Abortion Law Reform Act he could start with section 8.
Respectfully, “Mr Napthine, tear up this law”, and start to heal the conscience of your Parliament and your State.
* An abridged version of this presentation appeared in Newsweekly on 5 July, 2014. Dr. David van Gend is a family physician in Toowoomba, Australia, a senior lecturer in palliative medicine, and secretary of the Queensland branch of the World Federation of Doctors who Respect Human Life. He blogs at www.DavidvanGend.com
Endnotes
1. Savulescu J, Conscientious objection in medicine, BMJ Vol 332, Feb 2006 2006
2. Kron J, Do doctors have a right to refuse to provide treatments on moral grounds?Australian Doctor, 9/5/06
3. Abortion Law Reform Act 2008
4. Jackson J, Ethics in Medicine, Polity Press Cambridge 2006, quoted in Gerrard JW, “Is it ethical for a general practitioner to claim a conscientious objection when asked to refer for abortion?” J Med Ethics 2009;35:10 599-602
5. Gerrard JW, Is it ethical for a general practitioner to claim a conscientious objection when asked to refer for abortion? J Med Ethics 2009;35:10 599-602
6. Benn P. “The role of conscience in medical ethics.” In: Athanassoulis N, ed. Philosophical reflections on medical ethics. Basingstoke: Palgrave Macmillan, 2005:160–79, quoted in Gerrard op cit.
7. Prof Nicholas Tonti-Filipini re Facebook case.
8. Frank Brennan SJ on ‘The right not to kill.’
9. Brennan on totalitarian laws.
10. Universal Declaration of Human Rights (1948)
13. Julie D. Cantor, M.D., J.D., “Conscientious Objection Gone Awry – Restoring Selfless Professionalism in Medicine.” N Engl J Med 2009; 360:1484-1485April 9, 2009DOI: 10.1056/NEJMp0902019
14. Meaney J, Casini M, Spagnolo AG, “Objective Reasons for Conscientious Objection in Health Care.” The National Catholic Bioethics Quarterly Volume 12, Number 4 / Winter 2012
15. Herald Sun, “Melbourne doctor’s abortion stance may be punished”, April 28th 2013