Coalition’s religious discrimination bill goes far, but not far enough

The Sydney Morning Herald

Reproduced with permission

Xavier Symons*

It is no surprise that the Religious Discrimination Bill is being criticised as too strong by aggressive secularists and too weak by people of faith. Federal Attorney-General Christian Porter describes the bill as a “shield against discrimination”, not a sword.

The fundamental point is that this is not a religious freedom bill. It is a religious discrimination bill with a narrow focus on a very specific set of issues.

It characterises religious belief as a “protected attribute” of individuals akin to age, sex or sexual orientation. This is unlikely to satisfy many religious stakeholders who believe that religion is a positive good, not just for individuals (like sexual orientation), but also for communities. . . [Full text]

Drafting error in abortion bill

Eternity

John Sandeman

The “Reproductive Health Care Reform Bill 2019 – which decriminalises abortion in NSW – has a drafting error in it, according to Freedom For Faith‘s Michael Kellahan.

The drafting error makes the “conscientious objection” provision in the bill much less effective, despite being designed to protect medical practitioners who do not wish to be involved in abortion.

The effect is that the protection is not operative where the pregnant woman herself asks for a termination of the pregnancy. . . [Full text]

WA’s take on assisted dying has many similarities with the Victorian law – and some important differences

The  Conversation

Ben White, Katrine  Del Villar, Lindy  Wilmott, Rebecca Meehan

Western Australia may soon become the second Australian state to permit voluntary assisted dying, with the release on Tuesday of its Voluntary Assisted Dying Bill 2019.

As in Victoria, whose law is now just under two months old, the bill was the product of reviews by a parliamentary committee and ministerial expert panel. It’s expected to be debated in the Western Australian parliament in three weeks.

So how does what’s being proposed compare to the law in Victoria? . . . [Full text]

Abortion bill in New South Wales a global first

Freedom of conscience conditional upon gestational age

Sean Murphy*

The Legislative Assembly in New South Wales, Australia, has passed a bill decriminalizing abortion. It is obviously modelled on Queensland’s Termination of Pregnancy Act 2018.

The Reproductive Health Care Reform Bill 2019 permits abortion up to 22 weeks gestation for any reason; no medical indications are required (Section 5).  Abortion after 22 weeks gestation may be performed for any reason that two practitioners find acceptable (Section6(1)a), including current and future “social circumstances” (6(3)b).

A provision for conscientious objection requires disclosure of objections to abortion by a practitioner when asked by someone (not necessarily a patient) to perform or assist in the performance of an abortion on someone else, to make a decision about whether an abortion should be provided for someone else who is over 22 weeks pregnant (Section 6), or to advise about the performance of an abortion on someone else.

When a woman up to 22 weeks pregnant wants an abortion or advice about an abortion, an objecting practitioner is required to explain how she can contact a non-objecting practitioner, or transfer the care of the patient to a practitioner willing to provide an abortion, or to an agency (health service provider) where an abortion can be provided. 

If the woman is over 22 weeks pregnant, a practitioner is obliged to disclose objections to abortion but, if not convinced that the abortion should be performed, is not obliged to facilitate the abortion by explaining how she can contact a non-objecting practitioner or by a transfer of care to a willing colleague (Section 9(3)).

Practitioners who object to abortion in principle and those who object in particular cases are often unwilling to facilitate the procedure by referral, transfers of care or other means because they believe that this makes them parties to or complicit in an immoral act.  Thus, the provision for conscientious objection in the bill actually suppresses the exercise of freedom of conscience by these practitioners with respect to abortions up to 22 weeks gestation.

On this point Queensland’s Termination of Pregnancy Act, while it also suppresses the exercise of freedom of conscience by physicians who object to referral for abortion, at least does so consistently from conception to birth.

It is possible that the wording of this provision has been been muddled in New South Wales either in an attempt to put an end to the idea that only women can become pregnant, or to avoid the possibility that abortion might not be available to a woman who believes that she is a man, or who believes that she is neither a woman nor a man, but who becomes pregnant.

In any case, New South Wales may become the first jurisdiction to make the exercise of freedom of conscience in relation to abortion conditional upon the gestational age of an embryo or foetus.  If the bill passes, a physician will be free to fully exercise freedom of conscience at 22 weeks plus one day, but not at 22 weeks minus one day.  The inexact calculation of gestational age contributes further to the arbitrariness of this restriction of fundamental human freedom.

Euthanasia bill falls short on freedom of conscience

Objecting students unprotected, refusal may incur civil, criminal liability

Sean Murphy*

Western Australia’s Voluntary Assisted Dying Bill 2019 includes provisions intended to protect all registered health practitioners who refuse to participate for reasons of conscience. By virtue of the Health Practitioner Regulation National Law (Western Australia) this includes nurses, midwives, pharmacists, radiologists, psychologists and other professions.

However, the bill explicitly excludes students, probably to ensure that only non-student practitioners are permitted to accept and process requests, assess patients and provide euthanasia or assisted suicide (EAS).  Unfortunately, the effect of this exclusion is that nothing in the bill prevents students from being required to participate in all aspects of EAS delivery under the direction of a fully qualified registered health practitioner, or making such practical training a requirement for professional qualification.  This would be inconsistent with one of the guiding principles in the bill (Section 4(1)j), so it may be an oversight that will be corrected during the legislative process.

Fully qualified registered health practitioners may refuse to participate in the request and assessment process, prescription, supply or administration of lethal drugs, and to be present when the drugs are administered (Section 9(1)).  The bill further states that, by identifying these actions, it does not intend “to limit the circumstances in which a registered health practitioner may refuse” to do them (Section 9(2)).  This would seem to extend protection to include refusal to do do things not specified in the section, but obviously related to providing euthanasia or assisted suicide, like setting an intravenous line for administration of lethal drugs.  That interpretation is consistent with the definition of voluntary assisted dying, whichincludes “steps reasonably related to such administration.”  Clearly, this would include any of the actions explicitly required by the law, such as assessments, notifications, acting as a witness, dispensing lethal drugs, filing reports, etc., as well as setting intravenous lines and other technical preparations for providing EAS.

Sections 112 and 113 provide protection from civil and criminal liability and disciplinary proceedings for those involved in processing and fulfilling EAS requests if they act in accordance with the law. Section 113(4) extends this protection to omissions in accordance with the bill, but not to the refusals it permits.  Since “omission” does not mean “refusal”, this may reflect either an oversight in drafting or a deliberate decision to expose objecting practitioners to liability.

What could prove to be most contentious is the requirement in Section 19(5)b that an objecting physician give a patient “information approved by the CEO” of a public service department, perhaps a health department.  Whether this will be acceptable to objecting practitioners will depend entirely on the substance of the “approved” information.  It is unlikely to be problematic if it consists of general information about how to contact other physicians or health authorities.  On the other hand, resistance is likely if the “approved” information portrays euthanasia and assisted suicide as morally acceptable services or directs patients to EAS providers.  Objecting practitioners may refuse to comply if the law effectively compels them to express support for moral views they reject, or forces them to facilitate what they consider to be immoral or unethical acts by directing patients to EAS providers.

Why the abortion bill is a threat to freedom of conscience

Eternity

Michael Quinlan

Professor Michael Quinlan is Dean of Notre Dame Law School and a Freedom For Faith board member

The Reproductive Health Care Reform Bill 2019 which was introduced into the New South Wales Parliament on 1 August 2019 has attracted some media attention.

Since 1971 in NSW, it has been lawful to terminate a pregnancy where an honest belief is held that the procedure is “necessary to preserve the women involved from serious danger to their life, or physical or mental health.”

This Bill provides that the termination of any pregnancy up to 22 weeks will be permitted without restriction.

After 22 weeks, the Bill proposes that pregnancies may be terminated subject to certain conditions taking into account the woman’s “current and future physical, psychological and social circumstances.”

Freedom of Conscience and Religion

One part of the Bill which has not attracted much attention is the impact it has on the freedom of conscience and freedom of religion of registered health professionals.

In NSW, no referral is required to obtain a termination of pregnancy and information on the availability of such services is widely available on the internet.

Despite these facts, the Bill imposes a referral obligation on all registered health professionals who have a conscientious objection to disclose their conscientious objection to a person who asks them about those matters.

They must then refer the person or transfer their care to another health professional who they believe can provide the service and does not have a conscientious objection. In this way the Bill requires registered health professionals – which is a very broad group of people – who have a conscientious and often religiously grounded objection to participate in the procedure at least to the extent of a referral.

This is so, whether they object to abortion at all, or to abortion after a particular stage of gestation, or for sex-selection or disability grounds.

These obligations impact on all registered health professionals with conscientious objections but they are particularly onerous for Catholic health professionals because, in that tradition, participation in abortion causes an automatic excommunication from the Church.

If the State wishes to further liberalise the law in relation to the termination of pregnancy, it should not do so at the expense of health professionals with a conscientious or religious objection to participating in the procedure.

Hospitals and Health Industry in Limbo After Court Delays Implementation of “Conscience Rule”

Lexology

Duane Morris LLP

Regardless of whether organizations support or oppose the Conscience Rule, it is possible that it will become law on November 22 unless the courts and HHS move with uncharacteristic speed in a highly charged political arena.

Hospitals, health insurers and a variety of other healthcare entities do not have to be ready for a July 22 go-live date for the Trump administration’s “Conscience Rule.” Instead, the federal rule―designed to support health workers who opt out of providing patient care that violates their conscience, moral or religious beliefs―is facing such intense challenge in federal courts that the U.S. Department of Health and Human Services (HHS) agreed to a stipulated request to delay the effective date until November 22, 2019. . . [Full text]

“Do or Refer” Doctors Are Not Allowed to Use Their Best Judgment for Individual Patients (No More Jeanette Halls)

Choice is an Illusion

Margaret Dore

Yesterday, a doctor asked me about “do or refer” provisions in some of the newer bills seeking to legalize assisted suicide in the United States. For this reason, I now address the subject in the context of a 2018 Wisconsin bill, which did not pass.

The bill, AB 216, required the patient’s attending physician to “fulfill the request for medication or refer,” i.e. to write a lethal prescription for the purpose of killing the patient, or to make an effective referral to another physician, who would do it.

The bill also said that the attending physician’s failure to comply would be “unprofessional conduct” such that the physician would be subject to discipline. The bill states:

[F]ailure of an attending physician to fulfill a request for medication [the lethal dose] constitutes unprofessional conduct if the attending physician refuses or fails to make a good faith attempt to transfer the requester’s care and treatment to another physician who will act as attending physician under this chapter and fulfill the request for medication. (Emphasis added).[1]

The significance of do or refer is that it’s anti-patient, by not allowing doctors to use their best judgment in individual cases.

Consider Oregonian Jeanette Hall. In 2000, she made a settled decision to use Oregon’s assisted suicide law in lieu of being treated for cancer. Her doctor, Kenneth Stevens, who opposed assisted suicide, thought that her chances with treatment were good. Over several weeks, he stalled her request for assisted suicide and finally convinced her to be treated for cancer.

Yes, Dr Stevens was against assisted suicide generally, but he also thought that Jeanette was a good candidate for treatment and indeed she was. She has been cancer free for 19 years. In a recent article, Jeanette states

I wanted to do our law and I wanted Dr. Stevens to help me. Instead, he encouraged me to not give up and ultimately I decided to fight the cancer. I had both chemotherapy and radiation. I am so happy to be alive!

If “do or refer,” as proposed in the Wisconsin bill, had been in effect in Oregon, Dr. Stevens would have been risking a finding of unprofessional conduct, and therefore his license, to help Jeanette understand what her true options were.

Is this what we want for our doctors, to have them be afraid of giving us their best judgment, for fear of sanction or having their licenses restricted or even revoked?  

With proposed mandatory “do or refer,” assisted suicide proponents show us their true nature. They don’t want to enhance our choices, they want to limit our access to information to railroad us to death.

Notes

[1] AB 216 states:

156.21 Duties and immunities. (1) No health care facility or health care provider may be charged with a crime, held civilly liable, or charged with unprofessional conduct for any of the following:  

(a) Failing to fulfill a request for medication, except that failure of an attending physician to fulfill a request for medication constitutes unprofessional conduct if the attending physician refuses or fails to make a good faith attempt to transfer the requester’s care and treatment to another physician who will act as attending physician under this chapter and fulfill the request for medication. (Emphasis added).

Margaret Dore is an attorney in Washington State where assisted suicide is legal. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia worldwide.

Australia needs to recognise conscience rights, not just religious rights

Steady on! What about atheists and agnostics?

Mercatornet

David Van Gend*

Two problems with Scott Morrison’s proposed Religious Discrimination Bill. First, what does it mean for those who make a stand on conscientious, not religious, grounds? Why should our laws protect religious dissenters but not agnostic dissenters?

Second, does it effectively address the actual threats facing religious people? These are not threats to the freedom to worship but the freedom to speak one’s truth in the public square (not so, Izzy?) or educate one’s children in a faith-based school (not a ‘Safe School’) whose teachers uphold religious values.

Let me give two personal anecdotes of the overarching threat, whether to religious or irreligious people, which is the threat to free speech. Without free speech we cannot defend our deepest conscientious or religious convictions. . . {Full text]