Ever since abortion was decriminalised in the Australian state of Victoria in 2008, health practitioners have had the right to claim a conscientious objection, affording them the right to refuse to carry out an abortion.
That right also comes with a legal obligation to refer the woman to a health practitioner who they know does not hold a conscientious objection.
But many doctors, and even entire hospitals, are cherry-picking the law by ignoring their legal and professional obligation to refer - sometimes even actively obstructing women from having an abortion, according to new research published in British journal, BMC – Medical Ethics.
Study leader Associate Professor Louise Keogh of the Melbourne School of Population and Global Health, says that as a result, some women are undergoing abortions later than they might otherwise, if at all. While other women are being made to feel guilty or are being unwittingly subjected to delaying tactics under the guise of additional tests.
Associate Professor Keogh says the research raises questions about whether the current provisions in Section 8 of Victoria’s Abortion Law Reform Act get the balance right.
The clause is designed to balance both the rights of the doctors’ and the rights of women, but there is evidence that harm to women is occurring as a result of conscientious objection.
With colleagues at Family Planning Victoria, Women’s Health Victoria and the Royal Women’s Hospital, Associate Professor Keogh interviewed 19 abortion experts, including providers and counsellors. It’s the first study to examine how doctors are using their legal right to claim a conscientious objection in practice.
“The abortion experts we interviewed are often in the position of managing the fallout when a doctor misuses Section 8, so they are well aware of the impact that failure to refer can have on women,” says Associate Professor Keogh.
“It is difficult to get a handle on how prevalent this problem is, but Australian research surveying the attitudes of 740 obstetricians and gynaecologists (including trainees) suggested that around 15 per cent were conscientious objectors, but it was not clear how many of these would to refer women to a colleague without an objection.
“Our study participants reported that in some regional and rural areas it was common for doctors to use obstructing tactics.”
Globally, Victoria’s ‘object-but-don’t-obstruct’ laws occupy a midpoint between countries like Sweden where conscientious objection is illegal, and countries like Poland and Colombia, where there is ongoing pressure to re-criminalise abortion.
The Swedish position is summed up by the position ethicist Julian Savalescu, outlined in a 2006 landmark BMJ article:
“A doctor’s conscience has little place in the delivery of modern medical care… If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they shouldn’t be doctors.”
What Victoria’s framework arguably didn’t anticipate is opting out by entire institutions, regardless of the beliefs of individual doctors. The study participants felt that some hospitals were leaning on Section 8 in justifying their refusal to provide abortions, even though the provision was drafted to govern individuals, and no reference is made to institutions.
“There is currently no obligation on hospitals to provide abortions for the populations they serve, and there was a sense among the study participants that Section 8 was used to justify institutional opting-out,” Associate Professor Keogh says.
“Particularly in rural and regional areas, where there might only be one health network, this raises serious access challenges to what is a legal, safe and necessary service, especially when these facilities are publicly funded.”
Study participants also reported that some doctors claimed a conscientious objection for reasons other than conscience – perhaps to avoid gaining an unwanted reputation as “the abortion doctor”, rather than due to a moral position or religious belief.
Participants further reported that even though the law confined conscientious objection to registered health practitioners, other individuals like government telephone staff were using it to delay access.
One respondent reported that when telephoning Canberra to get authority for medical abortion under the Pharmaceutical Benefits Scheme, it was “not uncommon for the person on the other end of the phone to say ‘I will not have my hand in this process of you giving that medication to that woman.’”
Study co-author Associate Professor Marie Bismark, a doctor and public health researcher at the University of Melbourne, says the consequences for doctors breaching the law could potentially range from a caution or a requirement for further education around their obligations, through to being removed from the register of practitioners if their conduct posed serious ongoing risks to public safety.
Associate Professor Keogh says part of the difficulty in estimating the extent of the problem is that many women aren’t familiar with the Abortion Act, and may not know their rights or what they should be able to expect when they seek an abortion.
They also have no way of knowing in advance whether the doctor they seek out is a conscientious objector. The Australian Health Practitioner Regulation Agency lists individual doctors’ registration, and any adverse findings or conditions on their practice, but not whether they object to providing abortions.
One policy development in response to this problem was the introduction last year of the 1800 MyOptions information phone line. Ireland has introduced a similar service to coincide with the country’s decriminalisation of abortion.
Associate Professor Keogh and her co-authors are calling for more research on professional and community education, including the possibility of additional training for doctors.
Education could be especially relevant for doctors trained in countries where abortion is actively discouraged or illegal, says Associate Professor Keogh.
They also plan to undertake further research to better understand the views and practices of conscientious objectors.
“The lack of transparency, training and visibility around conscientious objection and patients’ rights is putting many women in a potentially difficult, traumatic predicament, which is avoidable, and we need clarity on the rights and responsibilities of institutions,” Professor Keogh says.
“The right to object shouldn’t mean the right to obstruct.”
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