Conscientious Objection to Abortion Revisited

The right of conscientious objection permitted doctors and other health professionals was recently subjected to close scrutiny by the New Zealand High Court in New Zealand Health Professionals Alliance Inc v Attorney General (NZPHA).¹ The reason for this was a major change to New Zealand’s abortion law regime.

In very broad terms, New Zealand has moved from a criminal framework to a health model. Under the Contraception, Sterilisation and Abortion Act 1977 (CSAA 1977) persons performing abortions committed a criminal offence. Abortions were permitted in some narrowly defined circumstances (such as incest and physical danger to the life of the mother) although, in practice, abortion on demand had become the norm. Nearly all abortions received the green light under the gateway exception (very broadly interpreted) that the pregnancy would result in a serious danger to the mental health of the woman.² Notwithstanding the liberal nature of the abortion law in practice, the government decided that it was time that the law on the books reflected the practical operation of the law.

Thus the Abortion Legislation Act 2020 swept away the criminal provisions and introduced a much more liberal regime that now treats abortion as a health issue. A pregnant woman can now seek termination of her pregnancy for up to 20 weeks of pregnancy without being required to satisfy the statutory vetting hurdles that the 1977 Act had laid down. After 20 weeks, abortion is permitted only if a health practitioner has deemed it ‘clinically appropriate in the circumstances’ and has consulted with at least one other qualified health practitioner.³

In keeping with the reformer’s view that abortion was, at heart, a health service, this service needed to be provided in a similar fashion to other health treatments. For the Law Commission, charged with coming up with a suitable model, this meant abortion needed to be available in a timely manner.⁴ The Commission noted that the earlier an abortion could be done, the safer and less distressing it would be for the women concerned. One study had shown there was an average wait of 25 days between a woman’s first appointment with a doctor and the abortion being performed and this sort of undue delay needed to be addressed. In a similar vein, access to abortions had to be more equitable in the sense that those who lived in more remote or rural areas ought not to be disadvantaged in the acquisition of this service. I have emphasized the Commission’s emphasis upon timely access and averting delays as this objective very much was to the fore in determining the scope of the new conscientious objection provision in NZHPA case.

Under the CSAA 1977 the conscience clause, section 46, had been given a quite wide interpretation that operated in favour of doctors. Medical practitioners and nurses were under no obligation ‘to perform or assist in the performance of an abortion if [that health professional] objects to doing so on the grounds of conscience’. However, another provision in a related Act cast a duty upon the health practitioner to inform a person that she could obtain the service from another health practitioner or from a family planning clinic.⁵ The New Zealand Medical Council sought to require doctors with a conscientious objection to arrange for the case to be dealt with by another doctor not having such a moral objection. A pro-life doctor, Dr Catherine Hallagan, successfully challenged the Council’s directive.⁶ The High Court agreed with Dr Hallagan that even the step of making a formal referral could violate the conscience of the doctor concerned. All the doctor was required to do was the bare requirement to inform the women that she could obtain the service from another (unspecified) health practitioner or from a family planning clinic. ‘No referral was required and nor was the conscientious objector required to assist the woman by providing any other information about how she could access the service sought.’⁷

The new abortion regime contained a conscience clause with a different wording.

The revised conscientious objection provision, section 14 of the CSAA 1997, inserted by the ALA 2020, introduced the concept of disclosure to the patient of the health professional’s objection to abortion on the grounds of conscience ‘at the earliest opportunity’. The section also placed an obligation on the doctor or other health professional to become sufficiently informed so they can also, at the earliest opportunity, tell the patient how to access the contact details of the closest provider of, in this case, abortion services.

14. Conscientious objection

(1) This section applies to a person (A) who is requested by another person (B) to provide, or assist with providing, any of the following services:

(c) abortion services;

(2) If A has a conscientious objection to providing, or to assisting with providing, to B the service requested, A must tell B at the earliest opportunity—

(a) of their conscientious objection; and

(b) how to access the contact details of another person who is the closest provider of the service requested.

(3) In subsection (2)(b), the closest provider is to be determined taking into account—

(a) the physical distance between the providers; and

(b) the date and time B makes the request under subsection (1); and

(c) the operating hours of the provider of the service requested.

The indefatigable Dr Hallagan, with the assistance of the NZ Health Professionals Alliance, a pro-life organization, sought to maintain the strong no-referral stance (afforded by the previous conscience clause) notwithstanding the new wording. In the words of Ellis J in NZPHA:

They are health practitioners who, in the exercise of their own consciences, take issue with a law that requires them to give a patient who seeks an abortion the minimal information she needs to make contact with a health provider who can help her. They say to provide this information would make them complicit in the abortion process, which they say involves the taking of human life and is contrary to their most fundamental beliefs.⁸

In a lengthy decision Ellis J found no basis for the no-referral position. For her Honour, ‘the nexus between the ability of women to access abortion services in a timely way and their fundamental rights’⁹ was as plain as it was compelling. A woman’s ability to access abortion services in an expeditious manner engaged fundamental rights such as her right to health, to liberty and security of the person and to be free from discrimination that were enumerated in various international human rights instruments that New Zealand had ratified.¹⁰ Ellis J also drew support from Wilson J’s judgment in the Morgentaler case¹¹ where the Canadian justice had propounded a strong defence of a woman’s right to abortion.¹²

The NZHPA argued that the new section 14 of the CSAA1977 required them, despite their conscientious objections, ‘to be complicit in the abortion process’.¹³ Providing contact details of the closet abortion provider would, they argued, infringe the objecting doctors’ right to freedom of thought, conscience and religion in section 13 of the New Zealand Bill of Rights Act 1990 (NZBORA 1990) as well as their freedom to manifest their religion and beliefs (section 15). Their freedom of expression (section 14) and freedom of association (section 17) were also said to be violated.

Under a different head the plaintiffs also argued that the new regime unfairly discriminated against doctors who had a conscientious objection. A new section 15 of the CSAA 1977, inserted by the 2020 legislation, required employers to accommodate conscientious objecting employees unless doing so ‘would unreasonably disrupt the employer’s provision of health services’.

Ellis J found none of these rights were violated, and even she was wrong and they had been breached, any such limits could be demonstrably justified in a free and democratic society under section 5 of the NZBORA 1990.

I will not go through all these rights arguments in detail¹⁴ and instead focus upon sections 13 and 15 of the NZBORA 1990. These two sections state:

13. Freedom of thought, conscience, and religion

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

15. Manifestation of religion and belief

Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

Section 13 was, noted Ellis J, ‘essentially concerned with the internal, subjective element’.¹⁵ Furthermore, ‘a restriction on the internal freedom of thought cannot be justified; the right is absolute.’¹⁶ If ‘s 13 absolutely protects internal thought processes’¹⁷ it was clear that the section was not engaged here. It was not the purpose of section 14 of the CSAA to interfere with the religious beliefs or consciences of doctors such as Dr Hallagan. Nor did the evidence ‘give rise to even a suggestion that s 14 has had that effect. Indeed, the evidence makes it clear that the plaintiffs remain steadfast in their beliefs.’¹⁸

The plaintiffs fared no better in their section 15 argument. Ellis J had no doubt the plaintiffs were sincere in their beliefs.¹⁹ However, her Honour questioned whether their beliefs were, to cite Williamson, compatible with ‘the basic standards of human dignity or integrity.’²⁰ Potentially, a doctor’s exercise of her right of conscientious objection might impede timely access to abortion where, for example, deliberately obstructive and dilatory action by a doctor might thwart an abortion until it was too late.²¹ This might in itself constitute serious infringement of a woman’s fundamental rights. There was, nonetheless, no suggestion that this was occurring here.

Was refusing to supply the information required by section 14 of the CSAA 1977 a ‘manifestation’, in terms of the ‘observance’ or ‘practice’, of the plaintiff’s religion or belief? European case law was once again drawn upon. From Eweida, the plaintiffs were required to demonstrate ‘the existence of a sufficiently close and direct nexus’²² between the act (refusing to supply the information to the patient) and the underlying belief (that participation in performing an abortion is morally wrong). In Ellis J’s view, the answer was a firm ‘no’.

I do not consider that the provision of information, as required by s 14 of the CSAA engages the notions of practice or observance. It is far from clear to me why—particularly in the case of the minimal and remote act required by s 14—a proper interpretation of s 15 of the NZBORA would permit the conscience of one individual either to restrict the exercise of conscience by another, or to limit access by women to a process that is not only lawful, but is grounded in their fundamental rights. Indeed, many commentators suggest that legal protection for conscientious objection to lawful medical procedures can only be justified at all, in human rights terms, when it is accompanied by a duty to refer. That is recognised in a raft of national and international ethical guidelines. And s 14 stops short of requiring even a referral.²³

I have quoted this paragraph in full because it reveals two important pillars of Ellis J’s reasoning.

First, it echoes repeated approving statements her Honour that the quid pro quo of any continued right of conscientious objection in this context is a duty to refer.²⁴ The High Court noted that Law Commission in its deliberations on abortion reform had not suggested abolishing the right of conscientious objection altogether but it had tied the continuance of this right to a duty to refer a woman seeking an abortion quickly to someone who could provide the service.²⁵

Second, the paragraph anticipates the finding later in the judgment that the any infringement upon the doctors’ right of conscience is decidedly inconsequential. Ellis J concluded that ‘the reality is that the obligations imposed by s 14 are minimal and—at best—only remotely connected with any abortion that may or may not follow.’²⁶ She drew some solace from the well-known UK cases that had held that ‘mere administrative acts only remotely connected to the abortion process’ did not constitute meaningful ‘participation’ in that process and thus fell outside the ambit of the protection afforded by the conscience clauses.²⁷

Ellis J was not prepared to accept that the affidavits of seven witnesses for the plaintiffs²⁸ that the refusal to refer or to supply information was grounded in their Christian faith proved there was a close and direct nexus. Nor was she impressed by a Papal Encyclical²⁹ proffered in evidence that sought to demonstrate the nexus between the Catholic faith and the belief that abortion was wrong:

there is no evidence before me as to the status this encyclical now has, some 50 years later. I would imagine, for example, that many adherents of that faith now honour a good part of it only in the breach. And many more would, I am sure, support a more nuanced and less absolute approach. I am unable to accept Dr Hallagan’s statement that “I have no doubt that by far and above the majority of Catholics throughout New Zealand would share my strongly held belief that abortion is wrong” is sufficient.³⁰

With all due respect to her Honour, one wonders what more the plaintiffs could have done to substantiate their claim.³¹

One further reason why Ellis J rejected the claim that section 15 was engaged was the familiar argument that notwithstanding the duty to comply with section 14 of the CSAA the plaintiffs could have still manifested their beliefs in other ways.³² But this could be said in nearly every instance of a complaint of coerced conscience and it simply moves the focus from the state having to justify its limitation to the believer having to show why he or she is compelled to take the position that have. Eweida makes it plain that a claimant does not have to establish that he or she acted in fulfilment of a duty mandated by the religion in question.³³

In summary then, the refusal to supply a woman with information about how to contact an abortion services provider was not a ‘manifestation’ of religious beliefs nor was compliance with the duty to provide such information a material or significant restriction upon the ability to manifest such beliefs.

Having failed to convince the High Court that their beliefs were in any material manner circumscribed there was, strictly speaking, no need to consider the justification stage of the rights analysis. Nevertheless, Ellis J still set out her reasoning and the plaintiffs again fared no better.

Under section 5 of the NZBORA 1990 the rights and freedoms in question may only be curtailed by ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ Section 14 of the CSAA, in the Court’s view, had the legitimate and rationally connected objective of facilitating access to abortions in an expeditious fashion. The Court was adamant that the section 14 duty only minimally impaired the rights of the conscientious objector—to the extent information provision could constitute participation at all (which the Court doubted), ‘that participation is minimal and remote.’³⁴ The section 14 obligation was a necessary safeguard for women who might not have the wherewithal to ‘navigate their way through the health system without assistance.’³⁵ Any limits upon NZBORA rights were entirely proportionate to section 14’s worthy objective which is ‘to further and enhance the enjoyment of indisputable and fundamental rights.’³⁶

Overall then the plaintiff’s claim met with negligible sympathy from a judge whose starting point was the fundamental right of a women to have straightforward and swift access to a safe abortion. Doctors with a conscientious objection to providing information about how to go about this must comply with this statutory requirement. Although not deal with squarely in the NZPHA case, it is abundantly clear that a requirement that the conscientious objector undertake a written referral to an identified doctor would similarly be met with the same answer: the court would insist that such an obligation is rightly to be regarded as the quid pro quo of the right to conscientiously object at all.

It was, in my view, disappointing that the High Court in NZPHA could not see how the refusal to provide assistance by way of contact information could be an expression of the doctors’ sincere religious beliefs. Surely conscientiously objecting doctors are manifesting their beliefs when they seek to distance themselves as far as possibly from any conduct that, in their eyes, would be tantamount to complicity in a morally objectionable taking of innocent human life. To rule out the freedom of conscience claim at the start by saying it is simply not a sincere manifestation of one’s deepest beliefs is, with all due respect, unduly harsh and misguided. Far better to acknowledge that there is a valid religious freedom claim and then place the onus on the state to show that its curtailment in the present circumstances is justified.³⁷ Thereafter the state might well discharge its burden of showing that compelled provision of information, and even a formal referral, is a necessary and proportionate response to a compelling health interest of pregnant women.

What lesson might we draw from the NZPHA decision? The case is a harbinger for the further erosion of the right of conscientious objection in this area. I suspect that not just in New Zealand but internationally, courts will become ever more unsympathetic to claims by conscientious objectors to abortion that any intermediate facilitative steps in the abortion process merit protection. It is I think not being unduly pessimistic to foresee that one day quite soon nothing short of the very act of surgically terminating the pregnancy will be seen as deserving of protection, if indeed recalcitrant non-participation in that final and ultimate act will still garner sympathy from the state.

Footnotes