‘Conscience’ or Discrimination?: Healthcare Providers, Abortion and Moral Obligation

There are practicing doctors around Australia who still oppose abortion and even refuse to prescribe contraception, citing ‘conscience’ as their explanation. But is that legitimate? And aren’t pro-choice campaigners driven by conscience too?

Former Victorian health services commissioner Beth Wilson looks at where this type of so-called conscientious objection leaves women - and how the removal of choice can impact women’s health.

Image by Eva Blue, art by Banksy.

We all have biases; it’s important to declare them. I believe everyone has a right to safe, effective health care. I believe women should have access to abortions where necessary, and to other reproductive health services — in a timely and safe manner, free from harassment and discrimination. Recently we have seen a concerted effort by some groups of health service providers seeking to limit or prohibit women’s access to these services on the basis of ‘conscience’. But conscience does not belong solely to people who are pro-life or anti-choice; for those of us who believe in a woman’s right to choose, conscience is our main motivating factor.

Women’s reproductive health services continue to be the subject of controversy and some extreme views. There are some people who regard abortion as ‘murder’ — meaning people who have had abortions, like me, are murderers. But there’s a convincing counterargument: that health service providers who refuse to provide abortion services (and other contraceptive assistance) to women are not conscientious objectors at all; they are really engaging in ‘dishonourable disobedience’.

When ‘conscience’ leads to harassment

‘Conscience’ can lead to harassment and discrimination. I accept that health service providers should not be obliged to provide services that go against their consciences, except in emergencies. But they should exercise those consciences in ways that do not harass or discriminate against women.

So what is this thing called conscience?

According to the The Oxford Dictionary (2008) it is:

The faculty or principle which pronounces upon the moral quality of one’s actions or motives, approving the right and condemning the wrong.

This doesn’t help us much, because we live in a morally pluralist society and what I decide is right, you may decide is wrong. We need to strike the correct balance between people’s right to safe medical treatment and the right of health workers to conscience.

Image by Steenaire.

Abortion and the law: Section 8

The major recent issue in Australia has been section 8 of the Abortion Law Reform Act 2008 (Vic). I believe section 8 strikes the right balance. Some opponents of abortion have tried to mislead the public by arguing it forces doctors to refer a woman for an abortion or to participate in abortions, but here is the exact wording:

ABORTION LAW REFORM ACT 2008 - SECT 8

Obligations of registered health practitioner who has conscientious objection

(1) If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—

(a) inform the woman that the practitioner has a conscientious objection to abortion; and

(b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

(2) Subsection (1) does not apply to a practitioner who is under a duty set out in subsection (3) or (4).

(3) Despite any conscientious objection to abortion, a registered medical practitioner is under a duty to perform an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.

(4) Despite any conscientious objection to abortion, a registered nurse is under a duty to assist a registered medical practitioner in performing an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.

Referring a woman seeking an abortion to another registered practitioner who does not have an objection is not forcing anyone into referring for abortion – though this has been claimed by opponents of section 8. What happens once the woman has been referred is a matter for her and her health provider. The consultation may well lead to a decision to terminate the pregnancy, or it may not. The legislation, which won support of all sides of the parliament, recognises that the woman has a right to learn what all her options are. Doctors who refuse to refer in accordance with the Act are breaking the law, risking their registration — and seem to be arguing that the only point of view a woman is entitled to hear is theirs.

Abusing the right to conscience

When I was Health Services Commissioner, I heard many stories of health service providers (doctors in particular, but also some pharmacists and nurses) abusing the right to conscience. One woman, who was in her early forties and had teenage children, found herself unexpectedly pregnant. She sought help from a general practitioner who threatened to certify her under the Mental Health Act if she persisted. This extremely poor health care led to much distress, and was a clear abuse of the doctor’s responsibilities. All in the name of conscience? I wonder.

Unfortunately, there are many examples of harm being done to women because health service providers have refused to treat them, claiming conscience. Leslie Cannold has documented some of these in an Opinion broadcast on the ABC’s Religion and Ethics programme (25/3/2011). They include: the suicide of a 13-year-old girl refused abortion after being raped by her 24-year-old cousin; the death of a woman with a painful colon disease when doctors refused on moral grounds to treat her because she was two months pregnant; a woman who had been advised to have an abortion because of the impact the pregnancy was having on an existing eye disease. The abortion was refused; she went blind. Deaths have also occurred in Catholic hospitals where women were refused abortions: who can forget the death of the young dentist in Dublin? She was refused an abortion because a faint fetal heartbeat was detected. She was not a Catholic. She was left to die anyway. Is this conscience, medical negligence or manslaughter? Or is it all of the above?

The obligations of pharmacists

Some pharmacists also claim conscientious objection to contraception and to dispensing the so-called ‘morning-after pill’ or emergency contraception. Dr Sally Cockburn has reported that a woman who sought the morning-after pill was refused by a pharmacist. She became pregnant and had to have an abortion. I’m not sure how the pharmacist reconciles that outcome with his or her conscience. And I wonder how the pharmacist would have reacted if she proceeded with the pregnancy and sued him for child support?

The obligations of pharmacists are set by the Pharmacy Board of Australia and administered by the national registration authority, AHPRA. Pharmacists who have a conscientious objection to providing oral contraceptives on moral or religious grounds should nevertheless always act professionally and ensure that consumers are informed about where they can access these items.

In February this year, the national president of the Pharmaceutical Society of Australia, Grant Kadachi, commented on a Victorian pharmacist who was asking his customers to shop elsewhere for birth control pills and was putting notes in packets of oral contraceptive pills indicating he is opposed to the use of artificial contraception on religious grounds. Mr Kardachi said that under the Pharmaceutical Society of Australia Code of Ethics, a pharmacist has the right to decline provision of care based on a conscientious objection, but this should not prevent the consumer from accessing healthcare that they are entitled to. He said, ‘Therefore in these circumstances the pharmacist should inform the consumer of the objection and appropriately facilitate continuity of care for the consumer.’

Women seeking contraception and emergency contraception should be free to do so without harassment or discrimination. There are particular difficulties in regions where there may only be one pharmacy. Pharmacists in these circumstances are advised by their professional organisations to keep a supply but to advise the customer to seek services elsewhere in future.

Nurses and conscientious objection

In her paper, ‘Nurses and Conundrums of Conscience’, assistant professor Carolyn A. Laabs (Marquette University US) explores the controversy concerning conscience, conscientious objection and health care, focusing on nursing. Nursing is a profession that includes much ‘morally serious’ work and Laabs argues there is a misunderstanding of the meaning of conscience that may be leading to much distress among nurses — and possibly to a chronic shortage of nurses. The obligations of nurses who claim conscientious objection are also prescribed by the Nurses Board of Australia and administered by AHPRA. There are various codes of ethics of the College of Nursing and other professional nursing organisations.

The College Code of Ethics for Nurses, in common with those of the other nursing organisations, is framed by the principles and standards set out in the UN Universal Declaration of Human Rights. These codes of ethics (including that of the Australian Nursing Federation) recognise the right to conscience, but also instruct all nurses to behave professionally at all times and not to discriminate or harass patients who do not share their religious or moral views.

The history of backyard abortions

Dr Bertram Wainer set up his clinic, providing safe abortions, because of his conscience, in the late 1960s. Dr Wainer, in common with many other health workers, had witnessed the dreadful infections women were experiencing because of the unhygienic practices of the backyard abortionists, or because of self-administered or forced home methods of trying to terminate an unwanted pregnancy.

In Gideon Haigh’s excellent book, The Racket: How Abortion Became Legal in Australia (MUP, 2008), he documents the history of backyard abortions in Victoria. He shows what happens when a much-needed service is prohibited — and the rogues come out of the woodwork (and the abattoirs) to capitalise on women’s distress. Some of the names of the backyarders continued to feature in Victoria’s gangland families: for example, Moran and Lewis. As a young woman who required an abortion, I am eternally grateful to Dr Wainer: because he acted on his conscience, I was safe. Haigh’s book ends with my personal story and begins with that of another young woman who was not so lucky. Carolyn Mary Jamieson was 21 when she died during an illegal abortion.

Anti-choice advocates and control

Jo Wainer (Bertram Wainer’s wife) discovered in her research that the reason women’s reproductive health attracts so much controversy is control. Anti-choice advocates want women to remain subservient; they cannot abide the thought or reality of women having true autonomy. What better way of attacking and shaming us than by focusing on our reproductive health?

In Victoria we are extremely lucky to have an Abortion Law Reform Act (2008) that carefully balances different views and allows for conscientious objection. This should never be abused. Women in Australia still have great difficulty accessing services in the regions, or where later term abortions are required. The laws vary between the states and I would urge all to consider following Victoria’s example, but to also add restrictions on protestors harassing women at clinics.

Medical abortions are now available and legal, but there are serious access difficulties. Not enough general practitioners and pharmacists have registered to provide the service. This may be because of conscience, but the attitudes of some major medical insurers have also been an obstacle. Some are charging the same premiums for medical indemnity for medical termination of pregnancy as for surgical. That is three times as much as is warranted. Doctors wanting to register to provide these services may like to know that one insurer is not taking this approach and they may wish to ask their insurers what their policy is. I don’t know if conscience or economics are influencing the insurers who are charging the higher fees, but their approach is limiting access to medical abortions — and therefore limiting women’s choices.

Conscience belongs to all of us. The right to pronounce on the moral quality of one’s actions or motives, approving the right and condemning the wrong, should be available to us all. However, we should exercise conscience responsibly — without harassment, gross exaggeration or discrimination — if we are to live together in a civil society that respects individual beliefs.

Portrait of Beth Wilson

Beth Wilson became Victoria’s Health Services Commissioner in 1997. She is a lawyer by training and has worked mainly in administrative law. Beth has had a long-standing interest in medico/legal and ethical issues.