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34 J. L. & Religion 85 (2019)
Medical Referral for Abortion and Freedom of Conscience in Australian Law

handle is hein.journals/jlrel34 and id is 89 raw text is: Journal of Law and Religion 34, no. i (2O9): 85-II2 © Center for the Study of Law and Religion at Emory University doi:Io.101 7/lr.zo19.14 MEDICAL REFERRAL FOR ABORTION AND FREEDOM OF CONSCIENCE IN AUSTRALIAN LAW JOANNE HOWE AND SUZANNE LE MIRE Associate Professor in Law, University of Adelaide Professor in Law, University of Adelaide ABSTRACT This article examines legislative changes related to abortion regulation in Australia that cre- ate obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of con- science in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of free- dom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion. KEYWORDS: abortion, conscientious objection, medical referral, freedom of conscience INTRODUCTION The freedom of conscience of medical practitioners to refuse referral for abortion is a vexed issue. In Australia, it necessitates balancing the rights of patients to access abortion, which is a legal and medically accepted procedure, and the rights of medical practitioners not to refer for a procedure that is contrary to their conscience. In 2013, two doctors in the Australian state of Victoria were subject to investigation for potentially contravening their referral obligation enshrined in the Abortion Law Reform Act 2oo8 (Vic), which provides that medical practitioners who conscien- tiously object to abortion must, nevertheless, refer the woman to another registered health prac- titioner ... who the practitioner knows does not have a conscientious objection to abortion.' For one of the medical practitioners, the investigation followed revelations that a doctor had refused to refer a patient for an abortion to facilitate sex selection., In the second case, a Facebook conversa- tion involving a doctor who indicated a conscientious objection to abortion was reported to the I Abortion Law Reform Act 2008 (Vic) s 8. Z Henrietta Cook, Abortion Law Changes Eyed as Dr Mark Hobart Probed, THE AGE (Nov. 7, z13), https://www. theage.com.au/national/victoria/abortion-law-changes-eyed-as-dr-mark-hobart-probed-zo 3110 7-2xzig-html. JOURNAL OF LAW AND RELIGION 85

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