That’s because health practitioners with an objection to performing the procedure on religious grounds may have stronger legal protection and may not be compelled to refer women to an alternative provider.
This may lead women to consult multiple services, if available, before finding a doctor willing to perform the procedure.
Who does the bill cover and where?
In the new bill, the term “health practitioner” has a broad meaning. It includes doctors, nurses, midwives and pharmacists. If the bill passes into law, it would apply to health practitioners around Australia. This means it has the potential to override current state and territory laws protecting women seeking abortions.
However, this new bill may override state laws by allowing health professionals with a conscientious objection to refuse to refer them.
The bill may also restrict the ability of private hospitals or private clinics to enforce a workplace policy that requires health practitioners to refer patients to other health practitioners if they object to abortion themselves.
If the new bill becomes law, the only situations where the health professional would be compelled to provide an abortion is if his or her employer would suffer “unjustifiable adverse impact” or if the patient would suffer “unjustifiable adverse impact”.
It is unclear how the courts will interpret these rules.
The new bill may make existing matters worse
The bill may also exacerbate problems some women already face in accessing an abortion.
In 2018, a Cricket Australia employee Angela Williamson spoke out after being forced to travel from Hobart to Melbourne for this reason. After speaking out on Twitter about the poor access to abortion services in Tasmania, she lost her job.
Conscientious objection is already a problem
Not all doctors act legally under existing legislation. A recent study focusing on Victorian providers found doctors had:
- broken the existing law by not referring women to another provider if they objected to perform an abortion
- attempted to make women feel guilty about requesting an abortion
- attempted to delay women’s access to abortion services, or
- claimed an objection for reasons other than conscience.
The study also showed how government phone staff authorising abortion pills, pharmacists, institutions like private hospitals and political groups all used or misused conscientious objection. They either delayed or blocked access to existing services or contributed to the actual lack of abortion providers and services, via lobbying the public or government.
The study found misuse occurred partly because people do not have to justify or register their conscientious objection. So there is no way of knowing if someone’s conscientious objection is a genuine or deeply, consistently held religious position.
The new bill will likely make these types of situations more common.
Right to religious freedom vs right to health care
The bill is controversial because it elevates the protection of religious freedom above other rights, such as the right to health care for women seeking an abortion.
Hugh de Kretser, executive director of the Human Right Law Centre, says:
Australia needs stronger protections from discrimination for people of faith, but the current bill introduces unjustified carve-outs for people to express discriminatory views and to override state and territory protections which ensure fair treatment, particularly for women accessing abortion services.
Adrianne Walters, senior sawyer at the Human Rights Law Centre, says:
The bill will undermine women’s reproductive health. In some jurisdictions, like South Australia and Western Australia, it will allow doctors to abandon their patients. The bill unjustifiably prioritises a doctor’s personal religious beliefs over the right of women to access the healthcare they need.
In 2018, an International Women’s Health Coalition study found a failure to provide abortions to women has terrible impacts by placing “patients at risk of discrimination, physical and emotional harm, and financial stress”. Those possible harms included death.
What we’d like to see
The Religious Discrimination Bill should be amended to strike a better balance between religious rights and women’s right to access abortion. It is important to require conscientious objectors to refer the patients seeking abortion to other providers.
There should also be provisions in the bill to ensure conscientious objectors genuinely have deeply and consistently held religious positions, perhaps through a registration scheme.
This report prepared by Elizabeth Shi, Lecturer, Graduate School of Business and Law, RMIT University and Ariella Gordon, Research assistant, Graduate School of Business and Law, RMIT University for The Conversation under a Creative Commons license.