Ethics and the limits of a Bill of Rights

I am a medical student. I am also a Christian. One day, I hope to graduate, register, and practice medicine. When I do so, I hope I will have the freedom to practice, with the aim of increasing health outcomes, and not acting against my conscience. I hope I will be able to act in accordance with the ethical principles that have guided medical practice for centuries, which can be summarised as: beneficence, non-malfeasance (“first do no harm”), autonomy and justice. And I hope that in allowing a patient to exercise his or her own autonomy, I won’t be impinging on my own.

It is on the last point that I am particularly concerned. Many have argued that a woman’s choice of abortion is an exercise of her autonomy. While the justification of my position is beyond the scope of this discussion, it will suffice to summarise my position as “pro-life”. I am of the conviction that personhood starts when biological humanity starts, which is at conception. I believe a living homo sapiens who happens to be developing inside a uterus should have just as much of a right to continue existing as a living homo sapiens who happens to be developing outside a uterus. This is partly because I am a Christian, but partly because I think any other definition is purely arbitrary.

The history of the abortion debate, and the variety of positions both legal and popular taken by peoples and their governments around the world, makes it clear that abortion is not an ethically incontrovertible issue. It is then also unsurprising that issues of conscientious objection should arise among the community of medical practitioners, who represent a diverse group of people from a vast range of cultural and religious backgrounds but who, despite this diversity, are increasingly expected to be homogeneous in the range of services they provide.

There are those who believe an unborn human is a person who deserves special protection if and only if this person’s parents desire for him or her to exist. If not, he or she may be discarded at his or her parents’ will. Most proponents of this attitude hold it on the basis that we cannot impose on the mother's freedom. I find this ironic, because many of these same proponents have pushed to have my freedom as a doctor removed and to not be involved in this process.

Some people would have a problem with me choosing to use my future position of influence as a doctor to tell women that it is morally wrong to end the life of their unborn offspring. In the same way, I have a problem with the State choosing to use its position of power over me, forcing me to be involved in the process that will result in an unborn human unnecessarily losing his or her life.

This is exactly what has happened in Victoria’s recent Abortion Law Reform Act 2008 (the Act). One of the biggest concerns for medical professionals - even those who have no moral problem with abortion - was the imposition on the freedom of conscience of Victorian Health Care Workers.

Section 8 of the Act forces doctors with a conscientious objection to abortion to disclose their beliefs before referring women to a doctor who is not opposed to termination. In effect, this means the doctors are involved in a woman procuring an abortion. They are required by law to act in a manner which is well known to be contrary to the consciences of many doctors.

If a woman came to my practice with a non life-threatening pregnancy seeking an abortion, I’m not sure I could, in good conscience, facilitate that process. Under the legislation a woman can seek an abortion for any reason up until 24 weeks (and quite easily thereafter). Babies born at less than 24 weeks have been known to survive, which could present a very understandable question of conscience for practitioners, religious or otherwise.

The Victorian Parliament was aware of the difficulties this part of the legislation caused. But this did not deter them. The Bill was passed without amendment. In fact, some bioethicists have championed this sort of imposition on freedom of conscience. Professor Julian Savulescu, of the Oxford Uehiro Centre for Practical Ethics, has said “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 doctors.”

Putting aside for a moment the question of whether abortion is beneficial for a woman (a point which is hardly clear, even before considering the welfare of the fetus), what are the values that Professor Savulescu is so indifferent towards? The values that extend all the way back to the Hippocratic Oath, which states: “I will give no deadly medicine to any one if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.” A woman may have the right to request an abortion, but a doctor should maintain the right to not be involved in her receiving that abortion.

Many people would champion the cause of unfettered patient autonomy with no room for any ethical considerations of the doctor. They would say we are basically service providers, and if that’s what the patient wants, that’s what the patient must get. However, I think the implications of a doctor not being able to exercise his or her own freedom of conscience in medicine are enormous.

Let me provide an analogy. Think for a moment of a practice that all reasonable Australians would consider grotesque: female genital mutilation (FGM). It is defined by the World Health Organization as a procedure that “intentionally alters or injures female genital organs for non medical reasons” (often social or cultural). It is associated with significant morbidities and even mortalities, not just because of the procedure itself, but because of the unsafe and unhygienic practices often associated with it.

The procedure is considered so abhorrent that Australian law forbids any Australian doctor from performing it or referring a patient onto another doctor for it, whether in Australia or overseas. Médecins Sans Frontières - who justify their provision of abortion services on the argument that women will do them anyway so they might as well be “safe”, will NOT under any circumstances perform an FGM, even to reduce the morbidities associated with unhygienic “backyard” provisions of the procedure. In effect, the State and a significant non-governmental organisation have drawn a line in the sand and said they will not facilitate this process on moral grounds.

However, FGM is a widely accepted practice in much of the world. For example, it has a prevalence rate of 90 per cent in Somalia. It is legal in some countries, and considered an important part of the culture. In some areas, it is difficult for a girl to get married if she has not had FGM performed on her.

If I was an expatriate doctor working in Somalia, and a girl came to me asking to perform one of these operations on her what should I say? Should I tell her this procedure is wrong, that it is immoral, that it is not necessary for her medical care, and that she should not proceed? But that would be paternalistic medical practice; it would diminish her autonomy.

Should I say, “Look I won’t provide it, but here’s a list of doctors who will - in fact, let me refer you to one”? But that would be a part of facilitating the process. My actions would help her be subjected to FGM.

Should I just give in and perform the procedure - after all, she’s more likely to suffer health risks if she takes the matter into her own hands, and considering how prevalent and widely accepted the procedure is, she’s going to get it done anyway: it might as well be under my watch so that it is as “safe” as possible? If I truly must put my own ethical considerations aside, performing the procedure would make for good clinical practice.

It is easy to see how a scenario like this is possible when we allow legislation to override the conscientious objections of practitioners. This scenario also illustrates the importance of preserving the right to conscience separately from particular ethical determinations.

The fact of the matter is that the medical profession’s ethical considerations regularly place restrictions on clinical practice, and on patient autonomy. The only question is which ethical considerations.

On a highly contentious ethical issue the Victorian legislation takes one particular position (namely, a fairly liberal approach to provision of abortions), and then prescribes a course of action to doctors without respect to (or seemingly, regard of) their conscience. It does not consider the conscience of, say, doctors within the Catholic health system, which provides a third of Victoria’s obstetric care, many of whom would have a major issue with being part of this process. It does not consider my conscience, which would be hesitant to engage in any aspect of a woman procuring a non life-saving abortion.

So we have reached a point where doctors’ rights to conscience are being breached in a most unabashed manner. Surely this is where a bill of rights comes into its own, where professionals of conscience are saved from the vagaries of legislation by the iron clad strength of explicit rights protections. Yet, this has not been the case.

Victoria has a Charter of Rights and Responsibilities. In Section 14 it states:

Freedom of thought, conscience, religion and belief

1. Everyone has the right to freedom of thought, conscience and religion. This right includes:
   (a) the freedom to have or to adopt a religion or belief of his or her choice; and
   (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.
2. No one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Yet this Charter did nothing to stop Clause 8 of the Act to pass, even though it clearly acts against many doctors’ freedom of thought, conscience, religion and belief.

This is the problem with the State attempting to legislate rights and values. Inevitably, different values will conflict. The value that promotes abortion as an ethical good is ultimately in conflict with the broadly held (if still in the minority) value that considers life as having significant, intrinsic value from its conception.

When the State supports one “right” it faces the complication of (sometimes many) competing “rights”. Indeed, this is a well known weakness in the “rights” approach to ethics in general. Rights proliferate, adding imperative to imperative, all the while giving no guidance to the resolution of competing values and interests.

When the State codifies rights, we are left with the law as our tool for resolving these often extremely complex and difficult intersections. The law is too blunt an instrument. The codification of rights removes ethical discourse from professional communities and the public in general. In the case of medical ethics, this takes the determination of the right course in a given situation away from both patient and doctor, away from family and community, away from the hospital or clinic, and quarantines the difficult ethics in parliaments and courts. This is clearly not where these discussions are best held and the Act demonstrates this well.

But if I were relying on a charter or bill of rights to protect my freedoms, I wouldn’t be so confident. Either it would be impotent to protect the rights it is supposed to (such as the Victorian Charter, which despite its section on freedom of conscience did nothing to stop Clause 8 of the Act from being passed), or it would have power, but would only protect the rights the bill itself sees as correct.

If there is significant disagreement within the community over the application of one of the rights, at the expense of another, the debate will not go to democratically elected parliamentarians who can be voted out next election, but to undemocratically appointed judges. There is the potential here for judges to push their own agenda.

Ultimately, despite the fact that I am saddened by the Victorian Parliament’s decision in passing the Act, I would still rather trust in a sovereign parliament, where I can be actively involved in the democratic process in trying to remove the Clause, than in a charter of rights. I hope the Victorian Parliament will amend the Act. I hope the thousands of people who protested, the many submissions Parliament received, and the common sense of many Victorian Parliamentarians will lead to this clause being amended because of the way that it ultimately decreases freedoms and rights.

I do not have any faith that the Victorian Charter of Rights and Responsibilities will protect conscientious objection now that the Act is in effect any more than it prevented its creation in the first place. Nor do I believe that similar rights legislation on a national level would protect my freedom to abstain from uses of medicine that I find morally indefensible. Despite its best intentions, a bill of rights is mere symbolism at best, and a danger to the freedom it so boldly promises at worst.