Denying people right to conscience akin to
How can civil libertarians deny others a right
they fight for?
26 September, 2008
Reproduced with permission
This centrality of
conscience in rights discourse hardly is surprising.
Of all the rich and varied freedoms, the freedom to
think and believe is fundamental. Without it people
not only have fewer human rights, they are less
ONE of the great truths of life is that everyone
loves rights. We love them when we have them. But we
particularly love them when we can loftily confer
them on somebody else. So satisfying. The problem is
that being a rights-giver carries its own
challenges. Anyone will defend a right they like or
a minority of which they approve. But the real test
is whether you are prepared to stick up for the
uncongenial rights of groups you just do not care
This is the test set by proposed abortion
legislation for various members of the Victorian
Parliament and assorted civil liberties glee clubs
such as Liberty Victoria. So far, they are failing
it like a fencepost sitting VCE physics.
Oddly enough, the immediate issue here is not the
vexed one of abortion, which admittedly raises
vastly different reactions in different sections of
the community. Rather, the issue is freedom of
This centrality of conscience in rights discourse
hardly is surprising. Of all the rich and varied
freedoms, the freedom to think and believe is
fundamental. Without it people not only have fewer
human rights, they are less human.
At present, the extent to which the state of
Victoria seriously values the right to conscience is
squarely raised by a number of requirements
contained in the Abortion Law Reform Bill. The one
most likely to become a daily monstrosity is that a
doctor with an objection to performing abortion is
required to refer a patient to a practitioner
without that objection.
The meaning of the provision in question is
patently clear, remarkably so in a bill with the
general drafting clarity of Yarra mud. If a doctor
with a moral or religious objection to abortion is
confronted by a patient requesting one, he or she is
to pass them on to someone they know will grant the
Attorney-General Rob Hulls deserves genuine
admiration for voting against this grotesque bill,
but is deeply unconvincing in his suggestion that
just because someone is being referred to a known
abortionist does not mean they are being assisted in
getting an abortion.
In fact, it is this concept of assistance and
contribution that lies at the heart of one of the
nastiest human rights abuses Victoria ever has
contemplated. By compulsorily referring a patient
for an abortion, an objecting medical practitioner
necessarily makes him or herself complicit in an
action they regard as ethically and morally
No other conclusion is logically possible in
relation to this or any comparable situation. Would
Liberty Victoria exonerate a public official who,
when told to inflict harm on some racial or other
minority, turned to the operative next to them and
said: "I refuse - so you do it instead"? Hardly.
Moral responsibility is profoundly adhesive.
Quite beyond the case raised
by this bill, the implications of this savage
intolerance of individual conscience are deeply
worrying. Where will this hyper-secularist disdain
for the rights of those with "misguided",
"individual", "subjective" and "bigoted" opinions -
to quote a few terms flying about in public debate -
Quite beyond the case raised by this bill, the
implications of this savage intolerance of
individual conscience are deeply worrying. Where
will this hyper-secularist disdain for the rights of
those with "misguided", "individual", "subjective"
and "bigoted" opinions - to quote a few terms flying
about in public debate - go next? It certainly makes
one reflect deeply, for example, on obnoxious
European laws proposing that Islamic and other
religiously distinctive elements of personal
appearance be banned from public schools. The same
intolerance of personal conscience and elevation of
"public good" runs in a frigid, clear stream from
the Elysee to Spring Street.
Almost equally worrying has been the profound
unawareness of those defending these genuinely
fascist positions that they are under the slightest
obligation to provide cogent arguments to support
the unsupportable. Anne O'Rourke's recent misfire in
The Age is a depressingly excellent example.
Essentially, O'Rourke was wrong. We were told
that hospitals do not have rights, but presumably
doctors and nurses do. We were reassured that there
were precedents, which should make any real
supporter of rights feel worse. We were told these
conscience provisions matched those in other states,
when there are clear and obvious differences.
Finally, we were told the Victoria Law Reform
Commission had done all the necessary thinking, so
we should not bother our pretty heads.
What is wrong with rights protagonists when they
can detect every genuine flaw in migration law,
every undeniable botch in anti-terror legislation,
the slightest inadmissible restriction on freedom of
speech, and yet blithely deploy the most
unconvincing legal sophistry in defence of a
provision that will require medical practitioners to
commit acts rendering their freedom of conscience as
much a legal fiction as the Australian monarchy?
Nor are we just talking doctors here. Compulsive
provisions of the bill place corresponding duties on
nurses and pharmacists to assist. What we are facing
is a state coercion of fundamental conscience on a
scale undreamt of since the Vietnam War.
When Archbishop Denis Hart says that Catholic
health services could be compromised or withdrawn in
the face of this coercion he is speaking an obvious
truth that conscientious objectors from Albert
Langer to Mahatma Gandhi would understand. You
cannot touch pitch and remain undefiled.