VIEWPOINT Doctors’ rights to conscientiously object to refer patients to abortion service providers Angela Ballantyne, Colin Gavaghan, Jeanne Snelling ABSTRACT A er five decades of restrictive laws, New Zealand is on the cusp of law reform that may result in abortion being treated as a health, rather than a criminal, matter. Given this possible liberalisation, a pressing issue is the way in which ‘conscientious objection’ (CO) will be accommodated within the new legislative landscape. In this context, CO constitutes a health provider refusing, on the grounds of personal conscience, to provide care that, although legal and potentially clinically appropriate, conflicts with their personal moral views. Currently, New Zealand law permits significant concessions for conscientious objectors. This paper argues that in the light of current reform, the justification for permitting CO should be revisited. It claims that even if it is conceded that some form of CO should be respected, a pragmatic compromise must be adopted so that both provider’s and women’s rights are su iciently protected. We argue that the current legal situation in New Zealand is unbalanced, favouring the rights of providers at the expense of women’s timely access to abortion care. At a minimum, providers with a CO should be required to ensure an indirect referral to another provider who is willing to refer the woman to abortion services. Abortion in New Zealand legal abortion on the grounds of social and 3 Statistics indicate that around a fi fth economic circumstances. of New Zealand pregnancies are termi- The Minister’s Request for Advice nated1 and one in four women have had an on Law Reform: Law Commission abortion in their reproductive lives—more than the percentage of women who have Briefing Paper The vast majority of abortions in New ever used IUDs.2 Currently New Zealand Zealand are performed on mental health women are among the 40% of women of grounds (97.6% in 2013) and are performed childbearing age who live in countries that before the end of the 10th week of preg- the World Health Organization refers to as nancy.6 In 2017, Minister of Justice Andrew having “highly restrictive laws”.3 Northern Little requested that the New Zealand Law Ireland is the only other developed country Commission (NZLC) provide advice on with more restrictive abortion laws, while what alternative legal approaches could be the Republic of Ireland recently liberalised adopted to align abortion law with a health, its abortion law.3–5 By comparison, 61 coun- rather than criminal, model. Following a tries, home to almost 40% of the world’s public consultation, the NZLC presented a women, allow abortion upon request of the range of proposals and options for reform pregnant woman. A further approximately (see Table 1). 20% of the world’s women have access to NZMJ 26 July 2019, Vol 132 No 1499 ISSN 1175-8716 © NZMA 64 www.nzma.org.nz/journal VIEWPOINT Table 1: Law Commission Alternative Approaches to Abortion Law: Ministerial Briefi ng Paper options for abortion reform.7 • Repealing the current grounds for abortion contained in the Crimes Act 1961. • Removing the requirement for abortions to be authorised by two specially appointed doctors, called ‘certifying consultants’. • Allowing women to access abortion services directly, or alternatively to be referred by any health practitioner they choose to consult (GP, nurse, midwife, counsellor), rather than having to get a referral from a doctor as required under the current law. • Removing the current restrictions governing who may perform an abortion, and where abortions must be performed. Instead, the provision of abortion services would be regulated by appropriate health bodies, just like any other healthcare procedure. • Disestablishing the Abortion Supervisory Committee. • Assigning responsibility to the Ministry of Health for collecting statistics on abortion and oversee- ing the distribution of funding and abortion services. Signifi cantly, the NZLC posed two options women’s access to abortion services’.”7 We in regard to CO: do not engage here with the question of Either (1) maintaining the current law whether health providers should be entitled regarding conscientious objection, or to CO. In this paper we focus on the ethical question of defi ning the reasonable scope of (2) amending it so that health practitioners CO for abortion referrals. who do not wish to provide health services in relation to abortion because of a consci- The current legal position entious objection are required, as soon as regarding CO and referral reasonably practicable, to disclose the fact It is clear that a physician with a CO need of their objection and refer the woman to not perform an abortion. It is equally clear another health practitioner or abortion that they have a duty to inform: indeed the service provider able to provide the service.7 Health Practitioners Competence Assurance Health providers as ‘gatekeepers’ Act 2003 (HPCAA) states that in the context model: what obligations regarding of reproductive health services, a health practitioner who objects on the ground of referral? conscience to providing the service must “… The NZLC paper presents two possible inform the person who requests the service models: the fi rst entails clinicians acting as that he or she can obtain the service from gate keepers to the abortion process; the another health practitioner or from a family other involves women being able to self- planning clinic.”9 In addition the Code of refer to abortion service providers. Clearly Consumers Rights provides that patient have if women may self-refer for abortion, CO extensive rights, including the right to be becomes a less signifi cant issue. However, it fully informed, and providers have corre- is not yet clear which recommendations the sponding duties.10 government will adopt should law reform The most contentious question has been proceed. This paper considers how, if clini- around the issue of referral. The notion of cians retain their role as gate keepers to ‘referral’ can relate to one of two things— abortion services, the issue of CO should be referring directly to the abortion service addressed. so that the grounds for abortion can be The NZLC emphasises that these proposals considered by certifying consultants; or, would not remove all grounds for CO in if the clinician has a CO, referring to a relation to abortion. Under both options, colleague who is prepared to consider health providers would retain their right the matter and arrange a referral to the to object to perform, or participate, in the abortion service as indicated.7,11 The former 8 provision of abortion. NZLC states that sort of referral has been described as ‘direct “the Government could consider changes referral’, the latter as ‘indirect referral’.12 to ensure that CO ‘does not unduly delay NZMJ 26 July 2019, Vol 132 No 1499 ISSN 1175-8716 © NZMA 65 www.nzma.org.nz/journal VIEWPOINT The High Court has made it clear that in a recent New Zealand Herald article, both direct and indirect referrals are chairwoman Kate Baddock appeared to subject to the right of CO in New Zealand.13 endorse the argument that: “For the same In 2010, the New Zealand Medical Council reason that patients have a right not to be sought to clarify that practitioners with a coerced into receiving treatment, doctors CO to providing direct referral for abortion and nurses have a right not to be coerced services must arrange for the woman’s into providing it”.16 case to be considered by another practi- This argument, which we call the tioner willing to consider and deal with “Argument from Symmetry”, is fl awed. It 14 the matter. This became the subject of fails to account for signifi cant differences a legal challenge by anti-abortion group, between the respective positions of patient New Zealand Health Professionals Alliance and provider. First, it fails to account for 13 (NZHPA). The High Court substantially the role-specifi c professional obligations of upheld NZHPA’s case, holding that, under doctors. Second, it seems to misunderstand the HPCAA, the practitioner’s statutory some of the core tenets of medical ethics and duties extend only to informing the woman professionalism, such as patient autonomy that she could be treated elsewhere, but did and non-malefi cence. As such, it cannot not extend, and importantly, could not be provide grounds for CO in general, or for the extended by the Medical Council, to referring strong version that New Zealand law pres- the woman to another practitioner who can ently protects. arrange the referral to an abortion service. Professional autonomy: the Consequently, a practitioner’s duties in New Zealand are minimal. They need only argument from symmetry To be clear, we are not disputing that inform the woman of the option of seeking there is a role for professional autonomy out another provider, but are not required for health providers. Rather, we are arguing to put her in touch with an alternative that the nature and scope of professional provider, facilitate her transfer or even autonomy cannot be derived from, nor provide contact details. The NZLC clearly seen as directly analogous to, the nature provides the option for changing the status and scope of patient autonomy. Medical quo in regards to CO and referrals, however ethics and medical law accord signifi cant the New Zealand Medical Association weight to the autonomous choices of adult (NZMA) opposes any change to the current patients. In terms of treatment refusals, scope of CO. a competent patient’s autonomy is all but Response to the NZLC absolute. They can refuse treatment even The response from the medical and allied when it is medically necessary to preserve health professions to the Law Commis- their life or health.