Abortion and Conscientious Objection: The New Battleground

Monash Law Review (2012) Vol 38(3): 87-119.

27 Pages Posted: 9 May 2013  

Anne O'Rourke

Monash University

Lachlan de Crespigny

University of Oxford

Amanda Pyman

Monash Business School

Date Written: July 10, 2012

Abstract

This paper examines the vexed issue of conscientious objection and abortion. It begins by outlining the increasing claims to conscientious objection invoked by physicians in reproductive health services. After an examination of developments overseas, the paper turns to the acrimonious debate in Victoria concerning the conscience clause and the ‘obligation to refer’ contained in the Abortion Law Reform Act 2008 (Vic) (‘ALRA’). This paper questions the interpretation by the Catholic Church that the clause breaches its right to freedom of conscience and freedom of religion. We argue that the unregulated use of conscientious objection impedes women’s rights to access safe lawful medical procedures. As such, we contend that a physician’s withdrawal from patient care on the basis of conscience must be limited to certain circumstances. The paper then examines international and national guidelines, international treaties and recommendations of treaty monitoring bodies, laws in other jurisdictions, and trends in case law. The purpose of this examination is to show that the conscientious objection clause and the ‘obligation to refer’ in ALRA is consistent with international practice and laws in other jurisdictions. Finally, the paper turns to the problematic interpretation of conscience and moral responsibility in the context of abortion. We believe that narrow interpretations of conscience must be challenged, in order to incorporate patients’ rights to include the choice of abortion and other lawful treatments according to their conscience. We conclude that the conscientious objection provisions in ALRA have achieved the right balance and that there is no justifiable legal reason upon which opponents can challenge the law.

Keywords: Abortion, Catholic beliefs, conscientious objection

Suggested Citation

O'Rourke, Anne and de Crespigny, Lachlan and Pyman, Amanda, Abortion and Conscientious Objection: The New Battleground (July 10, 2012). Monash Law Review (2012) Vol 38(3): 87-119.. Available at SSRN: https://ssrn.com/abstract=2262139 or http://dx.doi.org/10.2139/ssrn.2262139

Anne O'Rourke (Contact Author)

Monash University ( email )

23 Innovation Walk
Wellington Road
Clayton, Victoria 3800
Australia

HOME PAGE: http://www.buseco.monash.edu.au/blt/research/profiles/profile.html?sid=3485&pid=3438

Lachlan De Crespigny

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

Amanda Pyman

Monash Business School ( email )

Wellington Road
Clayton, Victoria 3168
Australia
+61 3 990 55204 (Phone)
+61 3 990 55412 (Fax)

HOME PAGE: http://www.buseco.monash.edu.au/depts/mgt/staff/academic/pyman_amanda.php

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