Decriminalisation in the Australian NT signals abortion is part of normal health care

Image 20170324 4967 qhypgk
The long road to abortion reform in the NT has been made possible by community campaigns, and gender parity in the lower house.
Brian Yap/Flickr, CC BY-SA

Suzanne Belton, Menzies School of Health Research

The Northern Territory parliament this week passed a bill decriminalising abortion up to 24 weeks’ gestation, removing the requirement of parental approval for abortions in teenagers and providing early medical abortions with tablets. The Conversation

Decriminalisation is important as it signals to the community that abortion is part of gynaecological care and should not be treated differently to any other form of health care. Abortion remains in the criminal codes of Queensland and New South Wales despite recent reform attempts.

A majority of countries have liberalised access to safe abortion as opposed to risky illegal abortion. The Centre for Reproductive Rights has a useful comparative map of abortion laws although it is not nuanced for Australia.

Data on abortion is poorly collected and analysed in the Northern Territory, but the new bill will ensure data will be collected for public health policy purposes.

Choices in women’s health

Previously NT women had no legal access to early medical abortion using the abortion medications mifepristone and misoprostol up to nine weeks and were only offered surgical abortions in three hospitals.

Early medical abortion has been legal in all other states and territories. The old Medical Services Act from 1974 that regulated abortion, stipulated that two doctors needed to be involved in the management, one of them being a specialist. This limited service was inadequate and out of step with modern gynaecology.

NT women and doctors will be able to use early medical abortion in general medical practices, health clinics and home settings. Women seeking termination services in regional, rural and remote areas face barriers to health care including finding a doctor, stigma, financial costs, and lack of privacy.

The bill enables significant improvements to women’s reproductive health, especially in a jurisdiction that struggles with health service provision and a challenging geography.

The bill also places safe access zones around clinics for health staff and women in a similar way to Victorian and Tasmanian legislation. The safe access zone will protect women and staff from intentional harassment, intimidation, obstruction or invasion of privacy. This also includes the recording of people leaving or entering health clinics and has penalties attached to this type of behaviour.

The bill also specifically references conscientious objection and the need for a health practitioner who holds anti-abortion beliefs to refer the woman to another health practitioner who does not. This is similar to Victorian and Tasmanian legislation and the national Australian Medical Association position statement.

Indigenous women’s health needs

The NT has a large minority (30%) of Aboriginal women who have higher maternal rates of death and illness than other women. During debate in parliament some members suggested that providing access to termination choices would be unsafe for Indigenous women in remote communities and that Indigenous women would not be able to understand aspects of their reproductive health.

The paternalistic and racist attitudes were called out by Mr Chansey Paech, Ms Selena Uibo and Ms Ngaree Ah Kit, Indigenous members of the legislative assembly who argued for legal equity.

This bill took four and a half years of public advocacy to be passed and there were several reasons for its success in 2017. The first is overwhelming public support for equity in health care and a strong community campaign.

The second reason is 50% of the members of the 13th Legislative Assembly are women. No state or federal parliament in Australia has this level of female representation. Women are better placed to understand women’s health needs and women in the NT were lacking this representation until gender parity in the lower house of parliament in 2016.

Addressing discrimination in health care

This legislation will reduce discrimination against women and go some way to meeting Australia’s obligations under the United Nations Convention of Elimination of all forms of Discrimination Against Women.

Termination of pregnancy enables women to manage their health and fertility, decreases maternal disability and death, and reduces unwanted motherhood. All of which are positive outcomes.

However, unwanted, mistimed and unviable pregnancies are not welcome events in women’s lives and may be indicators of poor health, genetic or contraceptive chance, social disadvantage, poor sexual and reproductive literacy, low reproductive autonomy, or lack of access to quality sexual and reproductive health staff and services. Some of these precursors to unwanted pregnancy need attention if abortion rates are to be reduced in Australia.

Suzanne Belton, Associate professor, Menzies School of Health Research

This article was originally published on The Conversation. Read the original article.

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Northern Ireland and abortion rights

By: Jennifer Thomson

Every week, around 15 women travel from Northern Ireland to England to terminate pregnancies. They often do so in secrecy, lying to family and friends, hiding their journey. They pay for the procedure privately, as well as their travel and any accommodation which might be necessary, meaning that they can end up out of pocket for anything between £500 and £2000.

Every day, over 500 women in England, Scotland and Wales terminate pregnancies. They do so in local hospitals or healthcare facilities, and they receive free treatment on the NHS.

Why is this the case? Why does abortion remain so restricted in Northern Ireland in comparison to the rest of the United Kingdom? Why are abortion rights so unequal across the territories of this country?

The law in Northern Ireland remains framed by the 1861 Offences Against the Person Act, which prohibits any attempt to bring about an unlawful miscarriage or to aid anyone in their efforts to do so. In 1937, in a ruling on a doctor who had performed an abortion on a teenage rape victim, a judge held that a termination was legal where:

If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequences of the continuance of the pregnancy will be to make the woman a physical or mental wreck.

This ruling was vague and, in light of this, Lord David Steel initiated moves towards what became the 1967 Abortion Act following his success in the private members’ ballot. The final line of this Act declares, almost as an afterthought, that it “does not extend to Northern Ireland”. This was confirmed in the 1990s and the 1861 Act and the 1937 ruling continues to constitute the very restricted framework in which women in Northern Ireland can access terminations. With the powers around justice and policing now devolved to the Assembly from Westminster, changes to abortion laws are more likely to come from Northern Ireland itself.

The differing legal treatment of the region is in part due to the very unique political situation in Northern Ireland. In 1967, the Parliament at Stormont in Belfast was still in existence and so a legal change from Westminster was deemed unnecessary. Westminster, in the years since the 1967 Act, has not been keen to pursue the topic, eager to avoid controversial issues so as to prop up the long-running peace process. Northern Irish politics remain divided along ethno-national lines, with the devolved Assembly established in 1998 only really taking root following the St Andrew’s Agreement of 2007. From 2007 until 2016, Northern Irish politics experienced its period of greatest stability yet, although a recent scandal and the resignation of Deputy First Minister Martin McGuinness is threatening the devolved structures in a manner not witnessed since the early 2000s. The Assembly has now been dissolved, and new elections are scheduled for March. In this context, where keeping the peace process on track and the devolved institutions working has been paramount, the political space for women’s issues such as abortion has been small.

One point of stability in this divided and often crisis-ridden political set-up has been the relative social conservatism which unites parties and politicians of all hues. Abortion is not the only issue on which Northern Ireland differs from the rest of the UK. Northern Ireland is the only part of the UK where same-sex marriage remains illegal. Many liberalising moves around LGBT rights (including the decriminalisation of homosexuality in 1982 and the rights of same sex couples to adopt in 2013) were initiated, not via the Assembly, but by private individuals’ actions through the legal system. Politicians who call openly for an extension of the 1967 Act, or for more liberal laws, are rare, and tend to be from the smaller parties. In the Assembly session of 2011 to 2016, only two MLAs openly called for the 1967 Abortion Act to be brought to Northern Ireland – Stephen Agnew of the Green party (at that point, his party’s only MLA) and Anna Lo of the Alliance party, the fifth largest party in the Assembly. Progressive moves on abortion on the part of political parties or the Northern Ireland Executive thus seem unlikely.

In spite of this less than positive state of affairs for abortion laws, and issues around sexuality more generally, the current situation in the province gives cause for  hope. In 2012 Marie Stopes opened a clinic in central Belfast and, despite multiple attempts from Stormont politicians to outlaw private facilities which provide terminations, it remains open. Media attention around the issue has also increased dramatically. The cases of Sarah Ewart, who travelled to England in 2013 to terminate a pregnancy with fatal foetal abnormalities in the company of a BBC NI film crew, and an anonymous woman from Belfast who was successfully prosecuted and given a suspended sentence after taking abortion pills bought online, have reignited debate around this issue. Much media attention appeared to be sympathetic to both women’s situations, reflecting a subtle shift in public opinion around abortion.

Yet, as described above, Northern Ireland’s politics remain dangerously fractured. Set against this backdrop, abortion reform looks set to continue to receive little attention, with the energy of politicians, and much of the media and civil society, diverted elsewhere. Substantial legislative change does not appear likely to happen any time soon.

Human Rights and Making Change: Looking Backwards and Moving Forwards from the Northern Ireland High Court Decision on Abortion

By: Catherine O’Rourke

In the aftermath of last week’s High Court judgment declaring Northern Ireland’s prohibition of abortion to be incompatible with UK human rights legislation in specific instances, there has been much valuable consideration of the judgment’s legal and political implications, for this jurisdiction and others.  In this contribution, I reflect on what the litigation and judgment say about human rights advocacy in Northern Ireland.

In summer 2013, in response to the Department of Health, Social Services, and Public Safety consultation on the draft ‘Guidance on the Limited Circumstances of Termination of Pregnancy’, I blogged on the need for local human rights organisations to ‘step-up’ to defend the human rights under threat by the failure of successive governments to bring clarity to abortion law in the jurisdiction, as well as the (then) urgent threat posed by the manifold potential civil and political rights violations raised by the 2013 Draft Guidance. The context for the call to local human rights organisations, including the Northern Ireland Human Rights Commission, to begin to advocate on the access to abortion as a human rights issue reflected several years of silence and inaction in the face of clear human rights concerns presented by the legal status quo. Specifically, the call reflected the failure of any local human rights organisation to support the request for an inquiry to be conducted by the CEDAW Committee under the Convention’s Optional Protocol into access to abortion in Northern Ireland.

Since summer 2013, much has changed. While I was writing my call for the local human rights community to ‘step up’ on abortion and human rights in Northern Ireland, the Committee on the Administration of Justice, Amnesty International and the Northern Ireland Human Rights Commission were all preparing responses to the consultation on the 2013 draft Guidance, emphasizing the manifold human rights compliance concerns raised therein. NI Abortion AmnestyAmnesty International has made reform to abortion law in Northern Ireland one of its priorities in its ‘My Body, My Rights’ campaign, involving inter alia the excellent report ‘Northern Ireland: Barriers to Accessing Abortion Services’. The Committee on the Administration of Justice has started to include access to abortion as a human rights concern in its 2015 shadow reporting to CESCR and to the Human Rights Committee. This marked an important new departure for a human rights organisation that had not previously raised the issue of abortion even in its shadow reporting to the CEDAW Committee.

NIHRCThe transformation of the approach of the Northern Ireland Human Rights Commission to abortion is arguably the most notable of all. In its 2008 Guidance to the Secretary of State on the proposed content for a Bill of Rights for Northern Ireland, the Human Rights Commission included only one reference to abortion:

The issue of women’s rights in respect of reproduction, and especially the issue of termination of pregnancy, has been one of the most controversial in the Commission’s consultations on a Bill of Rights for Northern Ireland. Forceful and deeply felt submissions have been made, in respect of a right to life for unborn children and in respect of a right of choice for women. There is no clear widely accepted international standard in respect of the underlying issues. (emphasis added)

In 2015, the Commission initiated the judicial review proceedings that were to ultimately prove successful in last week’s High Court decision, determining that Northern Ireland’s prohibition of abortion in cases of fatal foetal abnormality and in cases of sexual crime, up to the date when the foetus can exist independently, is incompatible with UK human rights legislation. The proceedings included also a third party written intervention from the Amnesty International Belfast office, in addition to Alliance for Choice, the Family Planning Association, Sarah Ewart and a number of anti-choice organisations.

Why the change and where to from here? When considered within the broader context of human rights advocacy in Northern Ireland, the significance of the litigation and its outcome is even more apparent. Local developments in human rights advocacy in Northern Ireland reflect – and were no doubt reinforced by – important legal developments in the European Court of Human Rights jurisprudence on access to abortion since Tysiac v Poland, and developed most notably through A,B,C v Ireland, RR v Poland and P and S v Poland. For rights issues that are locally contentious, such as abortion, the clear articulation of regional human rights obligations can be helpful in emboldening and providing cover for local human rights organisations to take on such issues. (There are inevitably limitations, however, in a human rights approach that articulates right of access to abortion in limited circumstances as a matter of private and family life, but not as a matter of gender equality.) The importance of the international is also evident from the central role of Amnesty International’s Belfast office to the litigation and surrounding press and public affairs activity. Amnesty International adopted the ‘My Body, My Rights’ campaign at a global level and, since then, has pursued a very active local campaign on abortion and human rights, in coordination with local pro-choice groups and constituencies. Arguably important also has been the diversification of human rights advocacy more broadly in the jurisdiction. From the traditional almost exclusive focus on conflict and post-conflict accountability issues (which I document in chapter 3 of my book, Gender Politics in Transitional Justice), contemporary human rights advocacy in Northern Ireland now takes in a broad swathe of issues from marriage equality to mental health and many others.

Taken together, these international, regional and locally-led developments have created a very changed context for pro-choice advocacy in Northern Ireland. Whereas human rights and pro-choice organisations traditionally maintained separate spheres of activity, with little cooperation or interface, last week’s High Court judgment evidences the potential effectiveness of coordinated strategies across human rights and pro-choice groups. Looking forward, as we consider strategies for translating the High Court judgment into progressive legal change, the particular skills of the human rights community in activating international scrutiny, combined with the critical role of pro-choice groups in continuing the articulate the essential equality arguments in working for social change, offer reasons for optimism.

This blog was originally posted on UCC’s Centre for Criminal Justice and Human Rights blog.

Northern Ireland abortion conviction the result of a draconian, archaic law

By: Sally Sheldon

A 21-year-old woman has been convicted in Northern Ireland for using abortion pills to terminate a pregnancy. She is the first person to be convicted for illegal abortion in Northern Ireland in at least a decade.

The woman, who was 19 at the time of her arrest, is reported to have pleaded guilty to the offence of “unlawful procurement of miscarriage” under the Offences Against the Person Act of 1861. This archaic law threatens women who procure even very early abortions with a potential sentence of life imprisonment.

In this case, the woman was sentenced to a three-month jail term, suspended for two years. She had obtained the pills online, having been unable to afford to travel to England to have a legal abortion. Her housemates reportedly informed the police of what she had done.

The relative leniency of the sentence injects a welcome note of compassion but this is nonetheless a case of a young woman who had exercised her reproductive rights being punished under draconian law.

The 1861 act also applies in England and Wales but its harshest rules are mitigated by the later 1967 Abortion Act, which states that no offence is committed if abortions are carried out under conditions of strict medical control. But this act does not apply in Northern Ireland.

Not much of a choice

In Northern Ireland, women with unwanted pregnancies face a desperate dilemma. Some will manage to raise the £400 to £2,000 necessary for travel and the cost of an abortion elsewhere. They may seek money from loan sharks and the time needed to make these arrangements means that their abortions take place later in pregnancy than is the case for their sisters elsewhere in the UK. This creates a vicious circle. They may need to raise the additional funds necessary for a later, more expensive procedure.

Other women may drink bleach or deliberately throw themselves down stairs in an attempt to provoke a miscarriage.

A third group of women pursue the option of sourcing abortion pills online – which is what has happened in this case.

Among the many websites that supply the pills, two not-for-profit groups have become trusted suppliers to women in Northern Ireland: Women on Web and Women Help Women. Each offers abortion pills, on prescription, for use in the first nine weeks of pregnancy, for a donation of around £50 (which will be waived in conditions of financial hardship).

Women on Web protest in Dublin. PA/Brian Lawless
Women then take the pills according to the same straightforward, highly effective treatment protocol that might be used in an English clinic. It’s extremely safe, provided that they have access to necessary and appropriate aftercare in the small number of cases where it is required. Yet these women risk prosecution.

A dated law in changing times

While abortion remains an issue of heated debate in Northern Ireland, the law that makes abortion pills illegal is the product of another time. It is characterised by mid-Victorian moral norms and medical realities. It was intended to punish sexual immorality, as well as the intentional killing of a foetus.

The law also aimed to protect women’s health. At the time it was passed, there were no known methods to end a pregnancy without the woman also harming herself. This is reflected in the language of the statute, which prohibits the use of “poisonous or noxious substances”.

Yet the abortion pills that women access online are far from poisons: they are recognised by the World Health Organisation as essential medicines. In a similar case in Australia, a jury refused to accept that abortion pills were “noxious substances”. Having heard expert evidence on that issue, it acquitted the woman who had used them.

That prosecutions for illegal abortion have been so rare in Northern Ireland reflects the difficulty of enforcing existing law in anything other than a highly selective way. Attempting to prevent the delivery of abortion pills, for example, would involve searching for needles in haystacks. It also suggests a widespread reluctance to report, investigate or charge women for illegal abortions.

It is also worth remembering the near universal condemnation of Donald Trump’s ill-judged comment that women who have illegal abortions should be punished. Even those who are strongly opposed to abortion on moral or religious grounds very frequently agree that threatening women with prison should be no part of a civilised society’s response to unwanted pregnancy.

Those who are sincere in the desire to reduce the numbers of abortions should recognise that restrictive abortion laws do not result in fewer abortions. Their highly discriminatory impact is rather to force wealthier women to travel and poorer women to access illegal services. Abortions are pushed underground, making them less safe and harming – indeed, in some instances, killing – women. Reducing the number of abortions can only be achieved by preventing unwanted pregnancies and this requires focusing on sex education and access to contraception rather than threatening prison.

The arrest and subsequent prosecution of a desperate teenager should provide a clarion call for Stormont to face up to these facts.

This piece was originally published on theconversation.com.

BPAS introduces abortion aftercare helpline

By Sinead Sweeney

This month the British Pregnancy Advisory Service (BPAS) launched a free 24-hour telephone helpline for women who have taken abortion pills purchased from websites such as Women on the Web (WOW) and Women Help Women (WHW). The helpline is open to those resident in Northern Ireland, the Republic of Ireland and the Isle of Man, where the taking of such pills is illegal.

Through the helpline, women can speak to an experienced and qualified nurse who can provide advice and reassurance about any symptoms or concerns they might have and who can refer women to hospital, in the rare instance that they require urgent medical attention.

This telephone aftercare service is already available to women who receive treatment at BPAS clinics. BPAS made the decision to extend the service due to fears that, given the potential criminal implications, many women delay or entirely avoid seeking vital medical care in the aforementioned jurisdictions. This can be detrimental to both their mental and physical health and so the helpline is designed to act as a confidential aftercare service for women too afraid to access the necessary services.

This is a much needed service in Northern Ireland where abortion is illegal and many women choose the online purchase of abortifacient drugs. Rates of home use of abortion drugs are steadily increasing and many women have come forward to declare that they have used these pills or have procured them for others. It has also been suggested that the recent decline in the number of Northern Irish women travelling to abortion clinics in Great Britain is indicative of a greater proportion of women using these pills.

Unsurprisingly the BPAS helpline has sparked a great deal of controversy amongst the pro-life lobby in Northern Ireland. Life NI, amongst others, has labelled it a ‘publicity stunt’ by BPAS, maintaining that setting up a helpline for these women encourages both abortion and law-breaking. In actuality, it is offering an aftercare service to which women in Northern Ireland are already legally entitled. As stated in the Department of Health and Social Services and Public Safety’s 2016 guidelines;

“Aftercare services should be available to any woman who presents with symptoms or     complications following a termination of pregnancy, regardless of where it was carried     out, so that she has access to appropriate treatment and counselling where required.”

This serves to highlight the reality that in Northern Ireland, much of the abortion debate is remarkably misinformed. Few are aware that circumstances exist in which abortion is legal and even less are aware of the help and advice healthcare professionals can and should give to women. The lack of frank and open discussion propagates the misinformation and misunderstanding and results in stilted public discussion of this important issue.

The majority of women are unable to access abortion services in Northern Ireland. Instead they are forced to seek alternative means, primarily by travelling to clinics in the rest of the UK. According to Northern Ireland abortion statistics for 2014/15 only 16 terminations of pregnancy were performed legally in Northern Ireland. During the same period 837 women travelled from Northern Ireland to England to access care.

While travelling to Great Britain is both safe and legal it occurs entirely at a woman’s own expense. This includes not only travel and accommodation costs but also the procedure itself. Total costs can be as much as £2000; a substantial amount particularly in light of the fact that in Northern Ireland approximately 20% of the population live in relative deprivation. Thus for those unable to afford an abortion in England, their only choices are to enter into an unwilling motherhood or to obtain illegal abortion pills.

The use of illegal abortion pills is a cheaper and more accessible means of accessing abortion care. However, this leaves women vulnerable to the risk of criminal prosecution and potentially without appropriate aftercare. Although abortion pills are relatively safe when supplied by organisations such as WOW and WHW, who carry out online or tele consultations, it is by no means the ideal given women’s reluctance to seek medical attention due to fears of stigma, judgment and prosecution. Such fears proved to be well-founded given the prosecution of a 21-year-old woman in April this year, for the procurement and administration of abortion pills, a charge for which she received a 3 month suspended prison sentence.

Given all of this, contrary to many pro-life organisation’s claims, I believe the BPAS helpline is a welcome development in tackling just one of the facets of the abortion dilemma in Northern Ireland. Northern Irish society has for too long been in denial of the problems created by its abortion law, particularly with regards to the use of illegal abortion pills. That said, this is beginning to change and the issue has received a great deal more attention in recent months. With the establishment of this helpline, BPAS has helped to further this debate by highlighting the reality of illegal abortion pill usage.

The helpline is no more encouraging abortion than an addiction helpline encourages illicit drug abuse. Instead it is providing a safety net to ensure that Northern Irish women receive the same essential medical care as every other woman living in the UK; ensuring that the health of women is not forgotten in society’s bid to retain some paradoxical sense of morality. Yet it is a temporary solution to a deep-rooted problem. For a true resolution, Northern Irish policy makers need to take responsibility for the failures of current abortion law and for the health and wellbeing of its female citizens. In order to do so, Stormont must move beyond inertia, stigma, and moral judgment.

Abortion & Reproductive Justice: The Unfinished Revolution III

Abortion & Reproductive Justice: The Unfinished Revolution III

International Conference call for Proposals

If you live in a jurisdiction where abortion has been made illegal, is taboo, difficult to obtain, and surrounded by stigma then you may wish to bring this momentous conference to your University in 2018.

Vision: Unfettered Abortion and Reproductive Justice for women the world over.

Some history: Starting in 2014, the first international conference on abortion scholarship and activism in Canada brought The Unfinished Revolution conference to Charlottetown, through the University of Prince Edward Island.  The vision of the conference was to raise scholarship and activism about abortion as a fundamental component of Reproductive Justice. Buoyed and inspired, academic activists in Northern Ireland worked to continue and extend the ideas of the initial conference to organize, Abortion & Reproductive Justice: The Unfinished Revolution II in Belfast, Northern Ireland at Ulster University in June 2016. This was an astounding success where attendees represented global interests in reproductive justice. There the attendees strongly endorsed the idea for a third conference to be hosted in the Global South or in locales which are often hubs of travel for communities in the Global South. The idea is to continue the discussion in locations where abortion scholarship may be silenced and activism is a key aspect to securing women’s human rights. These events make history as they bring international academic activism to bear on challenging the status quo of prohibitions on reproductive justice and abortion. They inspire new conversations and academic activist projects.

Do you have a team of 10 or so local scholars, activists, and professionals willing to help you organize an Unfinished Revolution Conference at your university? The idea is to build on the international solidarity and support so that organizers from the first two conferences will lend a hand in helping with the third and so on. Inquiries can be sent prior to the December deadline to conference organizers.

Please send your ideas for your conference by 1 December, 2016 to Abortion & Reproductive Justice: The Unfinished Revolution III

 

International Conference Organizers

Dr. Fiona Bloomer fk.bloomer@ulster.ac.uk

Or

Dr. Colleen MacQuarrie, email: cmacquarrie@upei.ca

Conscience rights and good faith

By: Dr Mary Neal, University of Strathclyde

Last month, following its Inquiry into Freedom of Conscience in Abortion Provision, the All-Party Parliamentary Pro-Life Group published its Report online. The Inquiry considered whether section 4(1) of the Abortion Act 1967 provides adequate protection for healthcare professionals whose consciences forbid participation in abortion. The Report made several recommendations, including: (1) that no professional with a conscientious objection to abortion should be required to refer a patient to another practitioner (i.e, the current GMC guidelines should be maintained for doctors and extended to cover other professions) and (2) that the government should explore the ‘feasibility’ of interpreting section 4(1) as protecting professionals against ‘indirect’ as well as ‘direct’ participation (the law’s current approach, following the Supreme Court’s judgment in Doogan, is to interpret section 4(1) as protecting against ‘direct’ participation only).

These recommendations have already been greeted with dismay by at least one commentator who sees the proposals as an attempt to obstruct the provision of lawful abortion altogether by making the process of obtaining abortion a ‘labyrinthine task’ for women. Logically, however, both referral and ‘indirect’ participation must be covered by any right of conscientious refusal, and the responsibility for ensuring that this does not obstruct access to lawful procedures belongs at an institutional level.

My research in this area has convinced me that protecting conscience rights within certain limits is absolutely vital in a morally-pluralistic society populated by morally-engaged individuals, and that in any case, the arguments against accommodating conscience just don’t stack up (together with a co-author, I explain all of this further in a forthcoming article in the Medical Law Review). In her recent blog on this site, Ann Furedi agrees there is a need to accommodate healthcare workers’ consciences, not only because it is better for women undergoing abortion not to encounter professionals who have been intimidated into participating (who would wish to be under the care of a healthcare worker who feels morally traumatised?), but also on the basis that respecting professionals by not forcing them to violate their deep moral convictions is the right and tolerant thing to do.

The purpose of any conscience right is to protect people from being drawn into moral responsibility for (what they regard as) serious immorality. Once we agree that conscience ought to be protected, it makes no sense to qualify the protection by requiring people to participate ‘indirectly’, or to facilitate the process by making referrals. Both of these types of involvement render a person morally responsible for the outcome (this is fairly obvious when we consider examples involving obvious wrongdoing), so requiring them undermines the very purpose of a conscience right – the goal of shielding people from moral responsibility.

As noted already, however, there is anxiety that allowing refusals in relation to referral and ‘indirect’ participation could mean delaying or even preventing women’s access to lawful abortion. This is, ultimately, speculation about an empirical question – we cannot be certain what the effect of interpreting the right to refuse in this way would be – but it seems fair to assume that if exemptions from referral/ indirect participation existed, some professionals would seek to exercise them (Doogan is an example). On the other hand, it can’t be assumed that all staff who object to participating directly would also object to participating indirectly, or to referring (even if logically, they should).

Meaningful protection for conscience means exemption from referral and indirect participation, but this needn’t mean women having to navigate a maze of dead-ends against a ticking clock. If it is anticipated that effective protection of conscience is likely to result in access problems, then the answer lies, as Furedi says, in “changing the ways in which services are organized, rather than forcing doctors to be involved in procedures to which they fundamentally object.”

Ultimately, as Furedi quite rightly points out, “provision of abortion is the responsibility of institutions not individuals. It’s the responsibility of the state, its health service and public hospitals to ensure that abortion is available where it is legal.” The Inner House of the Scottish Court of Session agreed, at the penultimate stage of the Doogan litigation, that the burden of managing the consequences of conscientious refusal ought to fall on the employer and not the employee. Relinquishing employment or being ineligible for promotion is far more burdensome for an individual than reorganising provision is for institutions which exist and are equipped precisely for the purpose of managing healthcare provision.

I agree with Furedi that there is a moral imperative for accommodating conscientious refusal. It’s not something to be tolerated grudgingly; on the contrary, it’s welcome evidence that our healthcare professionals are not mere functionaries who are prepared to park their supposed ‘commitments’ at the workplace door. At the same time, however, we are entitled to have certain expectations of those who exercise conscience rights.

A genuinely-held conscientious position is held because it is believed to be in accordance with the requirements of ethics. It seems perfectly reasonable, therefore, to facilitate only those conscience claims which meet basic ethical requirements, such as the requirement to treat others with kindness and respect. As a colleague and I have said elsewhere:

a genuinely ethical position cannot entail a lack of compassion or care. Good conscience never demands that a [healthcare worker] avoid feeding, toileting, comforting, listening, and other basic acts of care. Even if I regard the treatment a patient is receiving as immoral, it cannot be immoral for me to dry her tears if she is distressed, fetch her a glass of water if she is thirsty, or adjust her pillows if she is uncomfortable. It would be immoral not to do these things.

Recall, too, the concern about obstructing access to abortion. I have already argued that the purpose of allowing conscientious refusal is to protect individuals from responsibility for action they regard as immoral. Someone who conscientiously refuses to participate in abortion does so because of profound misgivings about the morality of abortion. She may also hold the view that the law ought to forbid or restrict abortion (though someone could well regard abortion as immoral, but take the view that it’s not the law’s business to forbid/restrict it). Even if someone regards abortion as immoral and wishes the law would restrict it, however (and leaving aside the complex spectrum of factors which may lead us to regard different cases of abortion differently from a moral and legal perspective), it takes yet another leap to arrive at the view that she is entitled to try to obstruct lawful access to abortion.

To exercise a conscience right in a way aimed at disrupting/obstructing access to abortion in general is an act of bad faith. Anyone who desires a less permissive abortion law has other ways of seeking to bring this about – voting, lobbying, campaigning, and so on – but the particular purpose of a conscience right is to protect individual healthcare workers. To deploy it as an act of sabotage would be a misuse, and where the right provides meaningful protection (i.e. covers referral and indirect as well as direct participation) and is made available on the basis of mutual good faith, it is difficult to see how the misuse could be morally-justified. (It would presumably also be politically counter-productive).

Fit-for-purpose conscience rights, properly managed, would bring important benefits for healthcare professionals and women alike. Healthcare professionals would benefit, of course, from being able to pursue their careers (which are, in many cases, vocations) without fear of pressure to violate their fundamental moral commitments. Women seeking and undergoing abortion could be assured of a pro-choice healthcare team, and the improved planning and co-ordination of abortion provision that would be necessary could also address other issues such as the inferior access already experienced by women living in rural areas of the UK.
There is an urgent need for good faith on all sides of the conscience debate. Healthcare providers have a moral obligation to make meaningful provision for conscientious refusal. The sooner they embrace this obligation and plan systematically for a meaningful accommodation, the better for all concerned. At the same time, those who exercise conscience rights must do so in a way that demonstrates good faith – in other words, the exercise of the right must itself be conscientious.

Power, politics, and privilege: objecting to conscientious objection

By Dr Arianne Shahvisi, Lecturer in Medical Ethics, Brighton & Sussex Medical School

In the UK, a doctor is permitted to refuse to provide a signature for an eligible abortion on the basis of a conscientious objection, provided the conscientious decision is explained to the patient, who is then assisted in meeting a willing signatory without significant delay. This accommodation is made by virtue of a conscience clause, which permits doctors to honour the demands of their consciences.

As Ann Furedi asserts in these pages: “Clinicians should hold values and make value judgements, including that they will, in “good faith”, act in the interests of their patients.” This is redolent of a common line of reasoning in this literature: conscientious objectors to abortion are likely to be morally deliberative in other ways too, and that is a valuable quality in doctors, so we should permit those objections in order to retain virtuous doctors. I’ll now explain why this argument doesn’t pass muster.

Many conscientious objectors are religious, which provides no guarantee that that they’d be more likely to apply defensible principles of medical ethics elsewhere in their practice. Religions often require followers to observe scriptural directives, or pay heed to the guidance of religious leaders, rather than generating and refining their own moral views. It might be said that it is precisely this convergence of morals, owing to their common, unchanging source, that unites people within a religion. Further, since no religion was founded, nor religious leader trained, with medical provision in mind, it would be absurd to suggest that religion might be capable of offering guidance that would elevate their followers above non-religious colleagues as moral deliberators in this domain.

But even if objections do not derive from religious commitments, I don’t think the sort of conscientious objection which leads doctors to refuse abortions is the sort of piloting force that is likely to produce exemplary outcomes for patients in other situations. Doctors who refuse to provide decisionally-competent adult patients with the legal care they request do not strike me as more likely to make good decisions elsewhere in their practice. If anything, they strike me as people who are apt to undermine patients’ wishes in other ways too; as people who perhaps believe that good medicine is arrived at via their desires and beliefs, not the self-determined desires and needs of their patients, or the well-researched and ever-changing recommendations of law and professional good-practice.

In some senses, of course, consciences are helpful to medicine. They might lead doctors to provide additional, supererogatory care, going beyond the call of duty to complement and enhance health in in the best interests of each patient as she self-determines her needs, rather than restricting the legal care which they are in the unique position of having been trained or authorised to perform. Those who conscientiously object to abortion are not better-placed, or maybe even well-placed, to be such doctors.

Either way, matters are rarely so simple, and the specificity of doctors denying abortions to women demands careful attention along three particular strands which relate to the context of abortion provision.

 

  • Power

 

These days, one is rarely able to see a particular GP, but is rather referred to whichever doctor is available (often a locum who may be working at the surgery for just that day’s clinic). This means that a person seeking an abortion is very unlikely to know anything at all about the doctor she sees in advance. There is always some chance that the doctor she meets will refuse to sign off her abortion on grounds of conscience. If that happens, best-practice guidelines mean that the doctor will need to explain that the conscience clause is being invoked and ensure that the patient is able to see a willing provider.

So here’s the scene: in the highly-ritualised context of a consulting room, a patient who is likely distressed, worrying about the future, and acutely aware of the social stigma of abortion, has awkwardly requested an abortion after some deliberation. The doctor responds: “I’m sorry, I’m not able to carry out that request because I have a conscientious objection to abortion” or something to that effect. It’s very likely that that utterance, that refusal, no matter how gestural or temporary, produces distress in the patient, causes her to feel judged, or even prompts her to rethink her choice.

It is my view that no patient should be subjected to moral judgment by their doctor. Patients are vulnerable: need and illness make it so. Doctors in the medical milieu are not. To express moral views in the context of that power dynamic is a misuse of a doctor’s position.

 

  • Politics

 

Most importantly of all, abortion is political. Globally, women continue to be denied autonomy over their reproductive capacities. Families, religions, and governments wield power, defended and actualised by direct and structural violence, in order to maintain control over reproductive choices. In many places, abortion remains criminalised, and only 29 per cent of women globally can access an abortion simply because they do not wish to be pregnant, while 47, 000 women die from unsafe abortions each year.

Weigh this against the backdrop of the many ways in which our societies continue to police, penalise, and objectify female bodies to appreciate that this is not a neutral matter of doctors’ keeping their consciences unruffled and patients demanding seamless care, it is a case of bodies that have been under surveillance and control being fought back by their owners after centuries of struggle. When a group of people have been consistently denied rule over themselves, it is insulting, reactionary, and highly political when service providers’ personal views are considered to be in any way relevant, let alone important enough to pose an additional barrier or judgment.

 

  • Privilege

 

Doctors are some of the most privileged people in British society. Despite the government’s ongoing attempts to undermine the NHS, doctors remain well-paid, with excellent job security. They are educated at elite institutions, are well-respected within the broader health profession, and are held in high public esteem.

I graduated with a first degree in physics, and had the option of working for various military and financial sector companies, who seek the analytical skills of scientists. I find the work of such sectors unconscionable, which narrowed my employment options quite considerably, but it felt edifying to flex my conscience. Choosing to become an ophthalmologist or a paediatrician instead of a GP in order to avoid abortion provision ought not to leave one feeling wronged, but rather glad to be faithful to a set of principles, and grateful to have options in a world where so many have few or none.

Conscientious objectors should not train to become doctors, or should, after qualifying, select professional specialities in which they will not encounter abortion provision. They are privileged enough to shoulder concessions for the benefit of others, and their social power renders it an abuse of authority if they subject patients to their moral views in clinical contexts.

 

Women should have access to abortions when they need them, because all people have the right to exercise sovereignty over the uses of their bodies. That women continue to be denied that basic right, in ways both overt and subtle, is a pressing political matter.

We support a woman’s choice of abortion: but should doctors have the right to choose too?

By Ann Furedi chief executive, British Pregnancy Advisory Service and author of The Moral Case for Abortion

Last month, the all-party parliamentary Pro Life group, led by Fiona Bruce MP, closed its consultation into the workings of the Abortion Act 1967 (as amended 1990) clause on conscientious objection. It is not clear what the consultation is intended to achieve. The questions seemed concerned with whether the clause works to allow doctors who object to abortion to opt out of involvement. It also seeks evidence of discrimination against doctors who declare an objection to performing abortion.

The Group’s concern is diametrically at odds with many supporters of legal abortion who claim that conscientious objection undermines access to provision. Indeed, in recent years, conscientious objection has become one of the most contested issues at international reproductive health gatherings – with claims that in many Catholic countries the principle of respecting the conscience-based decisions of individual doctors renders abortion unattainable, regardless of the law or public opinion.

Fiona Bruce may be surprised to find that bpas as institution committed to supporting women’s choice to end pregnancy is also committed to supporting the choice of some doctors to not be engaged in actions that they believe (however misguidedly) are the equivalent of murder.

bpas provides NHS funded treatment for about 65 thousand women each year  and we are keenly aware of the problems that doctors who consciously object to abortion can cause  for women. Even in Britain, where abortion is widely available, many women are reluctant to involve their family doctor because they fear their request will be refused or they will be judged. Abortion is already stigmatized and women often carry a burden of guilt about unplanned pregnancy, even when they are certain that abortion is right for them. An unplanned, unwanted pregnancy, in our society, suggests ‘failure’ of some kind, and no woman feels good about that.

Here we are fortunate in that the relevant professional bodies and regulators are clear that if one a practitioner cannot meet a woman’s legal request, she must be referred without delay to someone who can help. But that doesn’t eliminate the awfulness of being refused care because a provider believes they’re being asked to commit a sin.

But maintaining this difficult balance between the conscience of the woman and the conscience of the doctor is preferable, both on moral and practical grounds to a system that forces doctors to act against their consciences. It is better for doctors with a moral objection to opt out of services, providing they direct their patients to others who can help. Women who need abortion deserve better than treatment from coerced doctors.

The problems caused by objecting doctors must be resolved by changing the ways in which services are organized, rather than forcing doctors to be involved in procedures to which they fundamentally object. For example, allowing women to refer themselves directly into services without their GP’s involvement by-passes the need for family-doctor involvement altogether. It circumvents the problem of GP conscientious objection, is more convenient for women,  and saves precious resources in general practice by allowing doctors to concentrate on patients that are actually ill.

Allowing health care practitioners who positively want to prove abortion because they are conscientiously committed to providing reproductive choice is a way to fill the gap left by doctors who object. The law in the Britain, and many other countries, legally restrict abortion practice to doctors, when midwives, nurses, healthcare assistants and all manner of practitioners could offer safe services. Indeed with medication, it is the law and not clinical safety that stops women from simply obtaining the means to end a pregnancy from a pharmacy.

When all is said and done, the right due to a woman to control her own body does not extend to the right to force another to act against their morals to provide that care. We surely don’t want to see doctors simply ‘following orders’ and carrying out procedures that they believe are wrong . Clinicians should hold values and make value judgments, including that they will, in “good faith”, act in the interests of their patients; demonstrating beneficence and an absences of maleficence. If doctors believe that abortion is wrong and that it would cause harm, surely we must – in the same spirit of tolerance that should be shown to women – respect their judgment over their actions.

The provision of abortion is the responsibility of institutions not individuals. It’s the responsibility of the state, it’s health service and public hospitals to ensure that abortion is available where it is legal. Building clinical care in a framework where abortion is accepted and understood, where it is not seen as a moral wrong, but an enabling act showing consideration and faith in a woman’s judgment would be a giant step forward.

Pro-Life Inquiries: When is a Parliamentary Inquiry really a Parliamentary Inquiry? II

By: Dr. Nicky Priaulx

Participating in Pro-Life Inquiries: Engagement and Impact

In the contemporary academy we’re encouraged to participate in public debate and indeed to make an ‘impact’. But many are motivated simply by virtue of civic responsibility and the desire to make a difference to engage – whether through connecting with government, third sector or the broader public. In this respect, the ‘Conscience Inquiry’ might look like a wonderful opportunity to do precisely that when it’s so on topic.

However, for those tempted to feed into this ‘Inquiry’ quite some caution is needed. There is certainly prestige in submitting evidence to Parliament, but this is not presenting to Parliament. It will go to some folks in Parliament, but that’s it. If you choose to submit oral evidence, be more careful still – you’ll go to the Houses of Parliament but there too, that’s it. This is an informal group of individuals who have a very specific agenda they want to put into action and they are becoming increasingly hyperactive in so doing.

 

A Pro-Life Inquiry for Pro-Life

When coming to submit evidence online or sending in hard copy written submissions it is important to consider who is judging ‘the evidence’. If Fiona Bruce MPs name is there, and it sits alongside either any reproductive technique, abortion, dying (or indeed, more likely “living well”), then we’re probably talking about an exclusively Pro-Life affair. Of course, this is a little more apparent on the latest website, given the small print, but even then, if Twitter is an indication, some academics with that knowledge still seem to be approaching the so-called Conscience Inquiry as if this constitutes an opportunity for informed debate and discussion. For those expecting ‘balance’, be warned – that’s not going to be forthcoming – or at least if it looks that way, have a look at the report from the abortion and disability inquiry first. Ask questions before you participate; various academics, including myself, had our responses ‘woven’ into an overarching narrative that very few of us could ever subscribe to.  It was nasty stuff.

On the so-called Inquiry I participated in, there was no sign of this being led by the APPG for Pro Life. I didn’t know Fiona Bruce MP at that stage from Adam. But now I know to carefully steer anything in which she is involved given her status as Chair of the APPG for Pro Life. And she plays out her Pro-Life colours dutifully as her various Parliamentary interventions over the last few years demonstrate – taking exception to abortions on the grounds of disability, gender, mitochondrial donation, and more to boot. She’s a Pro Life mover and shaker, using her buddies in both Houses of the same political leaning to form panels or clusters of support for Pro-life measures. It’s almost impressive.

For me personally, in giving oral evidence, and a little wet behind the ears politically in thinking that all was as I expected it to be, my engagement with this Inquiry came as a horrible shock. I found out who the panel members were rather too late in the day (I should have asked) – and long after having submitted a lengthy report in advance which I assumed would be read by a balanced panel. I had extensively prepared for a balanced panel. Having received the transcripts of the earlier three sessions released to me on the day, I spent my time on the tube en route for my ‘day in Parliament’ furiously reading through these with a sense of increasing horror and disbelief. I didn’t need to know the panel members to know that something was afoot. Each transcript was drenched in pro-life. Pro-Life conversation. All of this now, seems hilariously obvious; but it wasn’t at the time – because I was set up for and genuinely believed that this was official Parliament business and it was a big deal and a glorious opportunity to make a difference. That was not going to be the case; and from the transcripts of earlier sessions, I had a sense of what was coming – but didn’t know the extent of it: I was presented with an exclusively Pro-Life panel. That that was the case, rather unfolded (hostility towards me by the hissing audience and the panel itself who ran with a bizarre line of questioning in the course of giving “oral evidence”).

Some of panel’s pro-life stripes were easily discoverable through searching the registers of APPGs: prominent members of the APPG for Pro Life (Fiona Bruce MP, Baronness Masham of Illton, John Pugh MP), and those who despite not being members of that APPG at the time, such as Rob Flello MP have since signed up for the APPG for Pro Life (but was on the APPG for the Holy See at the time, which was possibly a clue). The red flag for me, was the notoriously Pro-Life Baroness Knight of Collingtree – a prominent name (Jill Knight) in the context of debates in the lead up to the Abortion Act 1967. Some less easy to position members if one hasn’t closely followed debates in the two House, gave me the hope of balance, which wasn’t there. Indeed the political leanings of the panel have become clearer to me since – composed of those who either spoke out against gender-based abortions (Baroness Hollins of Wimbledon), and those who provided backing for Fiona Bruce MP’s Abortion (Sex Selection) Bill 2014-15 (Jeremy Lefroy MP, Virendra Sharma MP).  That was the panel.

There are significant and fascinating intellectual issues to be explored around section 4 of the Abortion Act 1967 and all of us know of very talented scholars working on issues of conscience who would – in a genuine and balanced inquiry have important things to say. But that’s the caveat really – this inquiry isn’t after what is interesting and intellectually fascinating.

 

Concluding thoughts…

Of course, there are still merits to participating in this – to at least disrupt what would be in the absence of our voices, an otherwise smooth Pro-Life script. But when dealing with Pro-Life groups in these kinds of settings, much greater thought is needed about what to say and how to say it. While the result of my own naivety and spending too much time deliberating over intellectual issues and wanting to provide a ‘useful’ and nuanced account, none of that mattered for this. In fact, that was problematic. Rather – more time was needed in thinking through – and asking – who my audience was. You should ask –APPGs are required to inform you of their membership. Had I known, my responses, and indeed entire preparation for that Pro-Life Inquiry would certainly be different now – I stumbled without thinking into an inquiry about abortion without thinking who would be motivated – really motivated – to hold one, and why.

Nevertheless, while I’ve been critical of my own oversights here, what I have learnt is why a Pro-Choice position must be uncompromising, clear and straightforward. And in particular, how in this particular terrain, it is always critical to stick to that (because you’ll be asked questions which try to pull you into ‘difficult’, marginal or ‘grey’ areas – and for Pro-Lifers, those zones are the place where their gains are made). Fiona Bruce MP and her friends are not interested in balanced debate; instead they will be looking to ‘extract’ from your written evidence and through a line of questioning, areas of your responses that fit their agenda. Your work can be utilised to lend them legitimacy even where you sought to achieve the opposite. Even if these ‘inquiries’ aren’t that important at the end of the day, you’ll feel your time was wasted and probably abused, in the process.

Knowledge then, of the role that APPGs play, who funds them (e.g. in the case of the ‘Conscience Inquiry’, the funders of the APPG for Pro-Life: CARE, and Life) and ensuring that the presentation of these so-called Inquiries are as transparent as can be is critical. And we now have a few more tools available at least to try to ensure that that is so. If we get tricked, members of the public will too, understandably. We can make it a little harder for informal groupings of Pro-Life campaigners to pass their ‘inquiries’ as Official Business, but it takes poking around in odd places.

 

Dr. Nicky Priaulx is a Reader in Law at Cardiff University and co-director of the Law Lab @ Cardiff. Her email address is PriaulxN@cardiff.ac.uk and her Twitter handle is @thetroutpouts.