I. INTRODUCTION
New South Wales health professionals with a conscientious objection to abortion and euthanasia
should be regulated in a manner which preserves moral integrity whilst maintaining the right to
access health care and all treatments available. Conscientious objection aims to balance the interests
of society and the interests of the individual, involving complicated questions regarding personal
autonomy, religion, morality, integrity and the state. Public discourse surrounding the regulation of
health professionals who conscientiously object abortion and euthanasia often incites fervent
disagreement, if not disdain.1 By drawing on arguments of pragmatism and pluralism as a
foundation for the legal regulation of conscientious objection in regards to euthanasia and abortion,2
a balance, if not a compromise, between the competing arguments and conflicting rights may be
made.
II. FREEDOM OF CONSCIENCE
Whilst freedom of conscience is a recognised human right3 considered to be absolute, it is accepted
that States may limit the ability to assert one’s belief where it is necessary to ensure the health,
safety and rights of others.4 Freedom of conscience in a medical setting is a vexed issue which
requires a balance between a patient’s right to health care and a practitioner’s right to
conscientiously object to a procedure that contravenes their religious or moral beliefs. 5 Protection
of freedom of conscience in Australian abortion and voluntary assisted dying legislation ranges
from a health practitioner not being required to perform or facilitate an abortion or euthanasia, to a
1Joanne Howe and Suzanne Le Mire, ‘Medical Referral for Abortion and Freedom of Conscience in Australian
Law’ (2019) 34(1) Journal of Law and Religion.
2 Ibid.
3 International Covenant on Political and Civil Rights, opened for signature 16 December 1966, UNTS (999) (entered
into force 23 March 1976) Art 18(1); Anna Walsh and Tiana Legge, ‘Abortion Decriminalisation in New South Wales:
An Analysis of the Abortion Law Reform Act 2019 (NSW)’ (2019) 27 Journal of Law and Medicine 325.
4 International Covenant on Political and Civil Rights, opened for signature 16 December 1966, UNTS (999) (entered
into force 23 March 1976) Art 18(3); Walsh (n 2).
5 Howe (n 1).
, duty on practitioners to refer the patient to a doctor that they know or reasonably believe does not
have a conscientious objection to the procedure. 6
Freedom of conscience in medicine should be supported as an approach that promotes and values a
healthy diversity of opinions and human integrity is of greater benefit to society. Freedom of
conscience is critical to the enrichment of society, the preservation of culture and is necessary to
maintain individual integrity and autonomy in a pluralist society. 7Smith contends that law-makers
and government should be cautious of legislative provisions which coerce individuals to act in a
manner which contravenes their beliefs as this erodes their identity.8 Regulations which seek to
override conscientious objection may be not be effective in the face of strongly held beliefs. A
Victorian doctor facing investigation for failing to comply with abortion legislation9 stated:
I am unable to refer for an abortion, because reason and logic lead me to conclude that it is murder.10
Subsequently, legislation regulating abortion and euthanasia should support conscientious objection
by permitting diversity of opinion and valuing human autonomy by enabling either a complete
refusal without referral or, at the very least, provisions which are less restrictive than the current
provisions requiring direct referrals.
III. ABORTION
Current limitations on conscientious objection to abortion in NSW which aim to balance competing
rights to health care and a right to freedom of conscience require reform to be less restrictive of
6See, for example; Abortion Law Reform Act 2019 (NSW) s 9; Abortion Law Reform Act 2008 (Vic); Voluntary
Assisted Dying Act 2017 (Vic); Voluntary Assisted Dying Act 2019 (WA).
7 Howe (n 1) 94.
8Steven Smith, ‘What Does Religion Have to Do with Freedom of Conscience?’, (2005) 912 (40) University of
Colorado Law Review; Howe (n 1) 94.
9 Abortion Law Reform Act 2008 (Vic).
10Mark Hobart, Submission No. 68 to Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of
the Victorian Charter of Human Rights and Responsibilities Act 2006, June 9, 2011, 1; Howe (n 1) 86.
New South Wales health professionals with a conscientious objection to abortion and euthanasia
should be regulated in a manner which preserves moral integrity whilst maintaining the right to
access health care and all treatments available. Conscientious objection aims to balance the interests
of society and the interests of the individual, involving complicated questions regarding personal
autonomy, religion, morality, integrity and the state. Public discourse surrounding the regulation of
health professionals who conscientiously object abortion and euthanasia often incites fervent
disagreement, if not disdain.1 By drawing on arguments of pragmatism and pluralism as a
foundation for the legal regulation of conscientious objection in regards to euthanasia and abortion,2
a balance, if not a compromise, between the competing arguments and conflicting rights may be
made.
II. FREEDOM OF CONSCIENCE
Whilst freedom of conscience is a recognised human right3 considered to be absolute, it is accepted
that States may limit the ability to assert one’s belief where it is necessary to ensure the health,
safety and rights of others.4 Freedom of conscience in a medical setting is a vexed issue which
requires a balance between a patient’s right to health care and a practitioner’s right to
conscientiously object to a procedure that contravenes their religious or moral beliefs. 5 Protection
of freedom of conscience in Australian abortion and voluntary assisted dying legislation ranges
from a health practitioner not being required to perform or facilitate an abortion or euthanasia, to a
1Joanne Howe and Suzanne Le Mire, ‘Medical Referral for Abortion and Freedom of Conscience in Australian
Law’ (2019) 34(1) Journal of Law and Religion.
2 Ibid.
3 International Covenant on Political and Civil Rights, opened for signature 16 December 1966, UNTS (999) (entered
into force 23 March 1976) Art 18(1); Anna Walsh and Tiana Legge, ‘Abortion Decriminalisation in New South Wales:
An Analysis of the Abortion Law Reform Act 2019 (NSW)’ (2019) 27 Journal of Law and Medicine 325.
4 International Covenant on Political and Civil Rights, opened for signature 16 December 1966, UNTS (999) (entered
into force 23 March 1976) Art 18(3); Walsh (n 2).
5 Howe (n 1).
, duty on practitioners to refer the patient to a doctor that they know or reasonably believe does not
have a conscientious objection to the procedure. 6
Freedom of conscience in medicine should be supported as an approach that promotes and values a
healthy diversity of opinions and human integrity is of greater benefit to society. Freedom of
conscience is critical to the enrichment of society, the preservation of culture and is necessary to
maintain individual integrity and autonomy in a pluralist society. 7Smith contends that law-makers
and government should be cautious of legislative provisions which coerce individuals to act in a
manner which contravenes their beliefs as this erodes their identity.8 Regulations which seek to
override conscientious objection may be not be effective in the face of strongly held beliefs. A
Victorian doctor facing investigation for failing to comply with abortion legislation9 stated:
I am unable to refer for an abortion, because reason and logic lead me to conclude that it is murder.10
Subsequently, legislation regulating abortion and euthanasia should support conscientious objection
by permitting diversity of opinion and valuing human autonomy by enabling either a complete
refusal without referral or, at the very least, provisions which are less restrictive than the current
provisions requiring direct referrals.
III. ABORTION
Current limitations on conscientious objection to abortion in NSW which aim to balance competing
rights to health care and a right to freedom of conscience require reform to be less restrictive of
6See, for example; Abortion Law Reform Act 2019 (NSW) s 9; Abortion Law Reform Act 2008 (Vic); Voluntary
Assisted Dying Act 2017 (Vic); Voluntary Assisted Dying Act 2019 (WA).
7 Howe (n 1) 94.
8Steven Smith, ‘What Does Religion Have to Do with Freedom of Conscience?’, (2005) 912 (40) University of
Colorado Law Review; Howe (n 1) 94.
9 Abortion Law Reform Act 2008 (Vic).
10Mark Hobart, Submission No. 68 to Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of
the Victorian Charter of Human Rights and Responsibilities Act 2006, June 9, 2011, 1; Howe (n 1) 86.
