Protection of conscience an issue in backbench revolt on Australian abortion bill

Demand for compulsory referral by objecting physicians among provisions deemed unacceptable

Sean Murphy*

Two Liberal Members of Parliament in New South Wales, Australia, have threatened to break with their party cross the floor to sit in opposition if the government does not make changes to a bill decriminalizing abortion (the Reproductive Health Care Reform Bill 2019). Should they do so, the government will lose its parliamentary majority.

Among the amendments Tanya Davies and Kevin Conolly are seeking is removal of a requirement that objecting physicians provide patients with contact information for non-objecting colleagues.

If the bill passes unamended, a physician will be free to fully exercise freedom of conscience at 22 weeks plus one day (when there is no requirement to provide contact information), but not at 22 weeks minus one day (when the bill requires contact information to be supplied.)  The inexact calculation of gestational age contributes further to the arbitrariness of this restriction of fundamental human freedom. (See Abortion bill in New South Wales a global first)

Bill to decriminalise abortion passes NSW Lower House

ABC News

Jonathon Hair

A historic bill to decriminalise abortion in New South Wales has passed the State Parliament’s Lower House, following two weeks of impassioned debate.

Members of Parliament were granted a conscience vote on the bill, which aims to remove abortion from the Crimes Act and define it as a medical procedure in its own legislation. . . [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.

Why the abortion bill is a threat to freedom of conscience


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.

New South Wales assisted suicide/euthanasia bill permits refusal, protects practitioners

Euthanasia debate: NSW Parliament to consider drafted legislation on assisted dying

Australian Broadcasting Corporation

Ashleigh Raper & Andrew Griffits

New South Wales is a step closer to allowing terminally ill people to voluntarily end their lives, with a draft bill with cross-party support being released today.

The Voluntary Assisted Dying Bill has been drafted by a parliamentary working group made up of members from the Coalition, Labor, Greens and an independent.

The draft bill would give a person over the age of 25 the right to request assistance from a medical practitioner to end their life. . . .[ Full text]

  • The bill does not include a protection of conscience provision per se.  However, Sections 6, 24 and 25 permit a practitioner to refuse to participate for any reason, making no distinction between refusal for reasons of conscience and refusal for other reasons.  It also equally protects both participating and non-participating practitioners from criminal and civil liability.