New South Wales
Reproductive Health Care Reform Bill 2019
What follows are the parts of an abortion bill that pertain to protection of freedom of conscience.
The bill 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(1)b).
The bill 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.
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.
9. Registered health practitioner with conscientious objection
(1) This section applies if—
(a) a person (the first person) asks a registered health practitioner to—
(i) perform a termination on another person, or
(ii) assist in the performance of a termination on another person, or
(iii) make a decision under section 6 whether a termination on another person should be performed, or
(iv) advise the first person about the performance of a termination on another person, and
(b) the practitioner has a conscientious objection to the performance of the termination.
(2) The registered health practitioner must, as soon as practicable after the first person makes the request, disclose the practitioner's conscientious objection to the first person.
(3) If the request by a person is for the registered health practitioner (the first practitioner) to perform a termination on the person, or to advise the person about the performance of a termination on the person, the practitioner must, without delay—
(a) give information to the person on how to locate or contact a medical practitioner who, in the first practitioner’s reasonable belief, does not have a conscientious objection to the performance of the termination, or
(b) transfer the person's care to—
(i) another registered health practitioner who, in the first practitioner's reasonable belief, can provide the requested service and does not have a conscientious objection to the performance of the termination, or
(ii) a health service provider at which, in the first practitioner's reasonable belief, the requested service can be provided by another registered health practitioner who does not have a conscientious objection to the performance of the termination.
(4) This section does not limit any duty owed by a registered health practitioner to provide a service in an emergency.