Why the right to conscientious objection must be restored
Presentation to the Life Dinner
Melbourne, Australia, 14 June, 2014
Reproduced with permission*
David van Gend*
I feel a little out of place coming from
Queensland to speak about the wretched situation in Victoria: coming from a
State where it is always sunny, where the people are always nice, and where we
don't have oppressive laws that try to compel the conscience of free citizens.
But we are all in this together: an
assault on fundamental freedoms in one State will become a precedent for similar
abuses in other States.
It was a Melbourne man, Julian
Savulescu, now an ethics professor at Oxford, who declared that doctors who will
not provide abortion should be "punished through removal of license to
practice". He wrote in the British
Medical Journal in 2006:
A doctors' conscience has little place in the delivery of
modern medical care. What should be provided to patients is defined by the law…
If people are not prepared to offer legally permitted, efficient, and beneficial
care to a patient because it conflicts with their values, they should not be
Crucial to his argument is that, "when
society has already decided that a service is legal", it is not for doctors to "compromise the delivery of services". When Savulescu's article was discussed in
2006 in the medical newspaper Australian
Doctor, I was given as an example of the sort of doctor who, in his view,
"should either get out of the specialty or the profession altogether."2
I gave a different angle to Australian
Doctor: that abortion as commonly practiced is not a medical service; it is
a "medical abuse" which doctors are bound by their Hippocratic principles and
humane conscience not to commit.
And no law, no professional board, has
the authority to compel any doctor to violate the principles of their vocation
or mutilate their own conscience by collaborating in intentional killing.
Yet in Victoria, under section 8 of the
Abortion Law Reform Act 2008,3
that compulsion by the authorities is exactly what doctors and nurses face.
Not long ago society was a little more
civil and did not contemplate using the force of law to compel the conscience of
Jennifer Jackson in the 2006 textbook,
'Ethics in medicine' writes that it is:
a hallmark of
civilised society that we exercise tolerance towards people with whom we
disagree deeply on moral or religious matters… that we find ways to avoid
forcing people to disobey the dictates of their conscience.4
Journal of Medical Ethics (2009)
Gerrard shows similar broad-mindedness, writing
Doctors, in common with other sections of the community,
will hold views on abortion across a spectrum. For some, what draws them to
practise medicine will be the same thing that informs their conscientious
objection. I think very strong reasons would need to be brought forward before
disallowing these doctors' practice.5
That touches on the vital point that
laws to disallow a doctor's freedom of conscience are likely to deter the most
conscientious young people from becoming doctors. Is that in the public
interest? The anticipated ethical grief may be such that talented but
tender-hearted young people choose a less hostile profession.
And what if the principle of section 8
is extended to other matters like euthanasia – as happened only last week in the
Canadian province of Quebec which, as I understand, now requires doctors with a
conscientious objection to euthanasia to refer their patient to another doctor
who will do the job? And what if the principle of non-objection to abortion is
extended to compulsory participation in abortion for all doctors in training? If
abortion is merely another surgical procedure and conscientious objection is
suppressed, how could a public hospital
not require all medical students and trainee doctors to participate in
Of course, that is exactly what many
hard-headed strategists would like to see: an ethical purge of sensitive, often
religious, consciences from the medical profession, either through Savulescu's
proposed "removal of license to practice" or by deterring them at the outset.
When Piers Benn writes in 'The role of conscience in medical ethics' that,
"to force someone to involve herself in what she deems morally terrible is a
special kind of attack on her," that is the voice of civility.6
But increasingly the uncivil people
control the high ground of our culture, launching a 'special kind of attack' on
those doctors and nurses who dissent from the culture of death.
These people were the teenagers in the
sixties corrupted by the sexual revolution but are now our academics sneering at
conscientious objectors or politicians passing brutal laws.
Their agenda fulfils
the sixties fantasy that people should be free to have sexual encounters with no
unwanted consequence. The only way to guarantee sex without consequence
is to guarantee the right to get rid of any and every unwanted baby. The passage
of Victoria's Abortion Law Reform Act
2008 marked victory, of sorts, in a forty year cultural battle, and to seal
this victory the victors enacted section 8 to silence dissenters. Section 8 is a
sinister and bullying measure designed to intimidate free speech as well as free
Free speech & free conscience
And of course these
two fundamental freedoms are linked, because free speech – or free argument - is
just the expression of free thought, and the thoughts that matter most to
individuals are those formed out of deep conscientious conviction. So free
speech is the expression of free conscience; they stand or fall together. As the
great poet John Milton declared 400 years ago at the end of an impassioned
speech to the British Parliament, "Give me the liberty to argue freely according
to conscience, above all liberties".
But doctors in this
State have lost the liberty to argue freely according to conscience, let alone
to practice freely according to
Medical ethicist Professor Nicholas
Tonti-Filippini observed in The Age last November that section 8 has the
power even to silence
discussion about conscientious
A doctor who merely
discussed with other doctors on
Facebook his intention not to refer has been brought before a panel of the
Australian Health Practitioners Regulation Authority (AHPRA) and he was
cautioned about unprofessional conduct….
The actions of AHPRA have made it a risk
for doctors to publish the view that
a doctor has the right to practice medicine according his or her own conscience
where that involves not referring for abortion…
It is extraordinary that the law should
compel a doctor to act against most codes of medical ethics... But it is even
more extraordinary to be pursued by the regulator
for what one says about this situation.7
And the noted human
rights lawyer Frank Brennan SJ was scathing back in 2008 about the suppression
of both free speech and free conscience in Victoria's abortion law. In a
powerful article entitled 'The Right not to Kill' he said,
One would have thought the right to freedom of thought,
conscience and belief in the Victorian Charter of Rights and Freedoms would have
counted for something when the legislators were considering the plight of those
doctors and nurses who in good faith regard the abortion of a viable foetus as
the moral equivalent of murder.
Ms Maxine Morand, the Victorian Minister for Women's Affairs,
has taken the view that all Charter rights and freedoms of all individuals are
irrelevant when it comes to abortion because s.48 provides: 'Nothing in this Charter affects any law applicable to abortion or child destruction'.
Victorian Parliament could also pass a law
prohibiting discussion about abortion
if it so wished, without need for any assessment of the freedom of expression,
given that such a prohibition would be contained in a law applicable to
abortion. This makes a mockery of the Charter.8
The leading medical campaigner on this
issue in Victoria, Dr Eamonn Matheson, puts it best, saying section 8 exists "to
put fear into the hearts of
doctors who practice medicine with a conscience and a morality different to the
authors of this law".
And so, on April 28th 2012 we
read in the Herald Sun:
doctor who refused to refer a couple for an abortion because they wanted only a
boy has admitted he could face tough sanctions… The couple had asked Dr Mark
Hobart to refer them to an abortion clinic after discovering at 19 weeks they
were having a girl when they wanted a boy. By refusing to provide a referral for
a patient on moral grounds or refer the matter to another doctor, Dr Hobart
admits he has broken the law and could face suspension, conditions on his
ability to practice or even be deregistered. "I've got a conscientious objection
to abortion, I've refused to refer in this case a woman for abortion and it
appears that I have broken the rules," he said.
This talk tonight is dedicated to that
19 week old baby girl who was put to death for the crime of being a girl, with
the full blessing of Victoria's evil laws. It is dedicated to Victorian doctors
like Mark Hobart who are being harassed by the authorities because they refuse
to collaborate with an oppressive law - a law which, in the judgement of Frank
Brennan, former head of Australia's Human
Rights Consultation Committee, "carries the hallmarks of totalitarianism."9
Victoria versus fundamental rights
How has it come to this, that a quarter
century after the fall of Soviet Communism and nearly seventy years after the
Nuremberg trials, a Victorian statute is described in terms usually reserved for
dictatorships? Lawyer and University Vice-Chancellor Professor Greg Craven felt
justified in labelling section 8 of the law as 'fascist'. Professor
Tonti-Fillipini agreed that "expecting a doctor to act against his conscience is
totalitarian", and the mild-mannered father of general practice in this country,
Emeritus Professor John Murtagh, was moved to call section 8 "Stalinesque".
Do Victorian politicians know no shame,
to have provoked such condemnation by such thoughtful men, and to be presiding
over the sort of tyrannical law that was more characteristic of our culture's
mortal enemies through a world war and a cold war?
Last week was the 70th
anniversary of the D-Day landing, and I visited a 91 year old man in a nursing
home who had flown a Lancaster bomber across the English Channel that day. His
brother was shot down and never found. As I thought of the vast sacrifice
required to deliver Europe from Hitler and his demonic forces, it struck me that
these Australians did not lay down their life so that adults in Victoria seventy
years later could enjoy the hard-won liberty of the
Abortion Law Reform Act 2008.
After the horrors of the Nazi regime had
become fully known, a temporarily contrite world searched its conscience and
made a serious effort to reaffirm fundamental right and wrong: first in the
Nuremberg code and then in the Universal Declaration of Human Rights (UDHR,
The preamble to the UDHR stresses the
disregard and contempt for human rights have resulted in barbarous acts which
have outraged the conscience of mankind, and the advent of a world in which
human beings shall enjoy freedom of speech and belief and freedom from fear and
want has been proclaimed as the highest aspiration of the common people; Whereas
it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law . . . 10
The noble affirmation of fundamental
human rights followed. Conscience had been required to rebel against the
monstrous tyranny of the Nazi era; now the insights of a just conscience were to
be enshrined in law "for all time".
Top priority in the UDHR is given to
freedom of conscience, as being central to the dignity of a rational creature.
The opening Article states:
beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of
Article 18 reinforces the fact that
reason and conscience are linked:
the right to freedom of thought, conscience and religion.
Rational reflection on right and wrong
is the essence of conscience. And concerning the rational reflection on the
matter of abortion, Gerrard acknowledges:
It is a reasonable position to hold that killing is prima
facie wrong, and will be a value we want all doctors to be aware of. Given the
range of possible rational views on abortion, it may be expected that some
doctors are going to extend this core value to interpret foetal life as coming
under this purview.11
And likewise Benn acknowledges the
reasonableness of doctors who oppose abortion:
Whatever our views on abortion, women's rights and the
metaphysical status of the embryo or foetus, we can see that the anti-abortion
position does connect intelligibly with the core values of medicine.12
Once again, these are
civil people who understand that a
reasonable conscience is a non-negotiable element in the integrity of any person
who would be a doctor or a nurse. Crush the conscience of a doctor or a nurse
and you will end up with a diminished and disintegrated person as your confidant
Returning to the Universal Declaration:
it was a sustained attempt at civility, at acknowledging the non-negotiable
element of reason and conscience in the integrity of any free soul.
Importantly, the Universal Declaration
drew on the philosophical tradition of natural law; it enunciated inalienable
freedoms that are ours by virtue of being rational creatures, not by fiat of any
political power. Our scholarly friend Rita Joseph in Canberra has written about
one of the drafters of the Declaration, Charles Malik, head of UNESCO. He
stressed that these rights were recognized as inherent to human nature, not
subject to the spirit of the age:
It is not an
accident that the very first substantive word in the text is the word
"recognition": "Whereas recognition of the inherent dignity and of the equal and
inalienable rights, etc." Now you can "recognise" only what must have been
already there, and what is already there cannot, in the present context, be
anything but what nature has placed there … Dignity and rights are natural to
our being and are not the generous grant of some external power.
And that which government has no power
to give, government has no power to take away.
Here is an assertion of immutable
natural law against trends to redefine right and wrong according to the interest
of the dominant collective.
But now the soulless collectivism that
brutalised medical conscience three generations ago is brutalising it again.
That collectivism is embodied in section
8, as an exercise in state power crushing individual conscience. In your
campaign to get section 8 repealed may I suggest that you be unrelenting in
condemning its totalitarian qualities, in that it compels citizens against their
conscience to "collaborate in killing"; thereby violating the inviolable
fundamental rights under the Universal Declaration.
You might take as a central quote the
words of the U.K. House of Lords Select
Committee on Medical Ethics in 1994 which declared:
"the prohibition of intentional killing
is the cornerstone of law and social relationships". Highlight that phrase
on every website and every section 8 letter to MPs; sky-write it across
By framing section 8 in terms of
violating the very cornerstone of law and
social relationships we will counter our opponents who try to dismiss our
conscientious concerns as being merely "religious" and therefore faintly
irrational. Savulescu scoffs at what he calls "mistaken values or religious
values" and Melbourne doctor Lachlan de Crespigny complains about "the unjust
practice of privileging conscience based on religious beliefs".
You will not find one word in my talk
today that argues from so-called "religious beliefs or values", because
opposition to intentional killing is not a merely religious matter. It is not
some pedantic scruple of religious minds which a secular society may indulge or
dismiss depending on how tolerant it feels. No: it is the foundation of human
justice in all civilisations.
Intentional killing is the fundamental
crime even in pagan society. Go to ancient Sumeria in 2000 BC and the legal
Code of Ur-Nammu decrees, "If a man commits a murder, that man must
be killed." Read the 'Book of the Dead' in ancient Egypt in 1500 BC where the
Righteous Soul declares, "I have not slain men." Even the ruthless Vikings
placed murderers "in Nastrond", their version of Hell. None of this condemnation
of killing is Judeo-Christian sentiment; it is the common sense of humanity.
So we must not let our outrage on
section 8 be marginalised as "religious", but must stand firm on the
cornerstone of law and social
relationships: that no citizen shall wrongfully kill, and no citizen shall
be compelled against their conscience to collaborate in killing.
Core and 'non-core' conscience
The other rhetorical tactic of our
opponents is to smudge the sharp outline of objection to abortion by lumping it
in with less compelling cases of conscientious objection. So in the
New England Journal of Medicine
(2009) Cantor raises the scenario where a theatre nurse conscientiously objects
to assisting at surgery "for an ectopic pregnancy."13
That is absurd. Of course doctors and nurses must undertake surgery for ectopic
pregnancy – I have done so myself – because the embryo is doomed and if we don't
act the mother might be doomed as well. The moral muddle of a theatre nurse who
thinks there is an issue of conscience with ectopic pregnancy says nothing about
the moral clarity of a theatre nurse
who has an issue of conscience with abortion-on-demand.
Cantor's essay mischievously confounds
an objection to refer for abortion with an objection to refer for
vaccinations, two scenarios of wildly
different moral seriousness. And yet, playing into her hands, we have a doctor
in Queensland who does refuse to provide childhood immunisation - on grounds, he
says, of "conscientious objection". But that is a misuse of the term. If some
fringe practitioners refuse to offer vaccinations, that may be on grounds of
misguided "clinical objection" but not on moral grounds of conscience. By
calling this "conscientious objection" such doctors only debase the currency.
And such careless claims to conscientious objection allows critics like Cantor
to conclude that, "When broadly defined, conscience is a poor touchstone; it can
result in a rule that knows no bounds".
This is a problem. A recent paper in a Catholic bioethics journal entitled "Objective
Reasons for Conscientious Objection in Health Care" recognised this problem,
and acknowledged that there is a spectrum of seriousness in grounds for
conscientious objection. The article differentiates between spurious objection
based on idiosyncratic ideas and grave objection based on foundational values
Recognizing a general right to conscientious objection
based on individual liberty, and thus a subjective right, could have negative
consequences. Conscientious objection in health care settings should be fully
protected, however, when the objection is based on principles that are
fundamental to the medical profession and the legal system.14
There can be no principle more fundamental to the medical profession and the
legal system than the principle of "the prohibition of intentional killing".
Therefore there can be no more fundamental ground for conscientious objection
than an objection to intentional killing - yet section 8 has the extreme
arrogance to deny even that ground for objection.
Ethics or Politics
Being arrogant wouldn't matter if
section 8 was toothless and unenforceable; but this is a clause with teeth.
When Mark Hobart told the
Herald Sun back in 2012, "I've got a
conscientious objection to abortion… and it appears that I have broken the
rules," it was reported that "Medical Practitioners Board spokeswoman Nicole
Newton said doctors were bound by the law and a professional code of
And so it appears that the Medical Practitioners' Board, AHPRA, is siding with
the Savulescu principle: that if a medical procedure is legal, even if gravely
immoral, a doctor must comply or be punished. That is how section 8 exerts its
I would have hoped that AHPRA Board
members would say, 'We have a conflict here between an outrageous law, indeed a
totalitarian law, and the time-honoured professional principle of conscientious
liberty, and we will not raise a finger to trouble such a doctor unless
compelled to do so by government. And if we are compelled to do so by
government, we will resign.'
That would have been a Board worthy of
the medical profession and of a free society. But instead, AHPRA chose the path
of soulless collectivism and interrogated Dr Hobart for refusing to send a
19-week baby girl to her death! The role of AHPRA is particularly disturbing
because their pursuit of Dr Hobart - and of the other unnamed doctor who merely
argued on Facebook against section 8 and abortion - is in defiance of their own
official code of ethics, which does
acknowledge conscientious objection and does not insist on referral for
Indeed every medical code of ethics in
this country stands on the side of Dr Hobart, and against section 8 and its
enforcers from AHPRA.
The Australian Medical Association in
Victoria has made this admirably clear, ever since 2008 and especially since the
case of Dr Hobart. Only last year they stated:
supports legislative reform which would remove the requirement that a doctor
with a conscientious objection must refer a patient seeking advice or treatment
in relation to abortion to a doctor who they know does not have a similar
And the President of the AMA federally,
Steve Hambleton, said last year:
legislation is incongruous with the medical profession's code of practice and
appears to fail to recognise that doctors have rights too.
Premier Denis Napthine was initially
impressed with this medical opposition to section 8, saying some years ago,
"Health professionals of the highest calibre, with the highest levels of
experience, are saying to us that clause 8 is fundamentally wrong… and clause 8
is fundamentally wrong". He voted
against the Abortion Law Reform Act
in 2008. So how could he preside over such a law as Premier, and do nothing?
Perhaps the Premier can take courage
from another conservative politician who died ten years ago last week. Ronald
Reagan rejected the cowardly stance of détente with the Soviet Union and
condemned the evil empire for what it was. Along with two other courageous
figures, Mrs Thatcher and Pope John Paul II, he dared to confront this monstrous
system and bring it down. He famously demanded, in front of that section of the
iron curtain that divided Berlin, "Mr Gorbachev, tear down this wall".
If the Premier of Victoria were to
abandon the cowardly stance of détente to the monstrous evil of the
Abortion Law Reform Act he could
start with section 8.
Respectfully, "Mr Napthine, tear up this
law", and start to heal the conscience of your Parliament and your State.
* An abridged version of this presentation
appeared in Newsweekly
on 5 July, 2014. Dr. David van Gend is a family
physician in Toowoomba, Australia, a senior lecturer in palliative medicine,
and secretary of the Queensland branch of the World Federation of Doctors
who Respect Human Life. He blogs at
1. Savulescu J,
Conscientious objection in medicine,
BMJ Vol 332, Feb 2006
2. Kron J,
Do doctors have a right to refuse to provide treatments on moral grounds? Australian Doctor, 9/5/06
Abortion Law Reform Act 2008
4. Jackson J, Ethics in Medicine, Polity Press Cambridge 2006, quoted in Gerrard JW,
"Is it ethical for a general practitioner to claim a conscientious objection when asked to
refer for abortion?" J Med Ethics 2009;35:10 599-602
5. Gerrard JW, Is it ethical for a general practitioner to claim a conscientious objection when asked to refer for abortion?
J Med Ethics
6. Benn P. "The role of conscience in medical ethics." In: Athanassoulis N, ed.
Philosophical reflections on medical ethics. Basingstoke: Palgrave Macmillan, 2005:160–79, quoted in Gerrard
7. Prof Nicholas Tonti-Filipini re Facebook case.
8. Frank Brennan SJ on
'The right not to kill.'
Brennan on totalitarian laws.
Universal Declaration of Human Rights (1948)
11. Gerrard JW, op cit.
12. Benn P, op cit.
13. Julie D. Cantor, M.D., J.D., "Conscientious Objection
Gone Awry - Restoring Selfless Professionalism in Medicine." N Engl J Med
2009; 360:1484-1485April 9, 2009DOI: 10.1056/NEJMp0902019
14. Meaney J, Casini M, Spagnolo AG,
"Objective Reasons for Conscientious Objection in Health Care." The National Catholic Bioethics Quarterly
Volume 12, Number 4 / Winter 2012
15. Herald Sun, "Melbourne doctor's abortion stance may be punished", April 28th 2013