Letter to MLCs Victoria

To all MLCs Victoria


We are writing to you as a group of concerned medical practitioners to ask you to reject the proposed Abortion Law Reform Bill 2008 which seeks to decriminalise abortion in this state.


We consider the legislation to be fundamentally flawed and deficient in its understanding of current medical and obstetric practice. We are extremely concerned about the conscientious objection clause; it is both unnecessary and unconscionable. The proposed legislation is also out of step with the general community’s desire for a reduction in the number of abortions and for increased support for vulnerable pregnant women[1].


There are six areas in particular that we wish to highlight as fundamental flaws within the  legislation and which provide good reasons for its rejection as a whole.


1.             Abortion is inadequately defined by the legislation and will serve as a source of confusion with alternative management options in complicated obstetric cases. It ignores complex aspects of intention; it makes no distinction between the intentional killing of the foetus and  incidental and unintended foetal deaths that may result from the management of complicated pregnancies.


2.             Abortion, properly defined, by its nature and object is unlike any other medical procedure.


3.         The conscientious objection clause is extreme and unprecedented.  Itis not in keeping with the codes of ethics of every major professional health body in Australia. This clause should be strongly rejected as an affront to the concept of freedom of conscience and as an attack on the moral integrity and autonomy of health professionals. The health of pregnant women would not be at risk without this clause.  An understanding of current clinical practice and the management of complicated pregnancies should allay any genuine concerns regarding this.


4.         The concept of ‘emergency abortions’ does not accord with clinical realities; it is both inaccurate and misleading.


5.         Late term abortion is never medically necessary. The provisions for its regulation are inadequate and, in effect, meaningless. The provisions for late-term abortion will not in any way regulate its practice and will, in effect, sanction all late-term abortions from 24 weeks to pre-birth.


6.         This legislation provides no support for vulnerable pregnant women.



In what follows, these six positions are put forward in detail with the support of evidence and reasoned argument. We hope that you seriously consider our concerns and objections as well as the broader implications of this legislation.


1.      Regarding the definition of abortion.


In section 3 of this Bill abortion is defined as “ intentionally causing the termination of a woman’s pregnancy”


a.            The definition of abortion used in the proposed legislation is ambiguous and misleading. It adds confusion to the debate about abortion and its decriminalisation rather than providing the clarity; it does not accord with the realities of current clinical practice, nor the gravity of the procedure it seeks to regulate.


b.         An abortion is not adequately described as a ‘termination of pregnancy’.  Simply stated, the termination of pregnancy by the early delivery of the unborn child does not necessarily involve an intention to terminate the life of the unborn child.  Abortion, however, is understood to involve the direct and intentional termination of the life of the foetus.


i.    Complicated pregnancies, in which there is a risk to the mother’s health and/or the health of the foetus, may be ‘terminated’ early, prior to full-term, by delivering a live infant, even though the health or life of that infant may be at risk indirectly as a result of the premature delivery. Such management, which is not uncommon, and is almost universally accepted as ethical, is not the equivalent of an abortion per se.  Yet, under the proposed legislation this would count as abortion.


ii.    The management of an ectopic pregnancy is also an early ‘termination of pregnancy’ performed for the sake of the mother’s health due to the pathological implantation of an embryo/foetus outside the uterus. It indirectly ends the life of the foetus, but it would be inaccurate and misleading to define this management of a common condition as an “abortion”.


c.         For the sake of clarity and to differentiate abortion from alternative management options of complicated pregnancies, abortion should be defined as “the direct and intentional termination of the life of the foetus”.  This is especially important in regard to late-term abortions as the ‘termination of the pregnancy’ and the ‘termination of foetal life’ are always separate and distinct issues; each involves distinct decisions and procedures. 


2.      Abortion is unlike any other medical procedure.


a.               Abortion, properly defined, is unlike any other medical procedure in that it involves the direct, active and intentional taking of human life.  Euthanasia, which remains illegal in Australia, is the only other procedure that is similar.


            Any doubts regarding this factual description and definition of abortion as the ‘intentional ending of a distinct human life’ can be removed by reading the first chapter of any embryology textbook.[2] The issue is not whether human life is present, but how society ought to treat it. We believe human embryos and foetuses deserve special respect as a form of human life, as the first page of someone’s life story.



b.       Abortion also has many grave and unique personal, relational, moral and social ramifications which renders it distinct from all other medical procedures.


c.       Unlike other medical procedures, the possibility of coercion and pressure, which may impinge on a woman’s capacity for free consent, are potentially significant issues.  


d.   Because the intentional taking of human life should always be regarded as a grave and       serious matter, it is not unreasonable to regard abortion as distinct from all other medical procedures from both an ethical and legal perspective.


3. A. Conscientious Objection: A duty to perform abortions


Section 8.3 of this Bill requires that “despite any conscientious objection to abortion, a registered medical practitioner is under a duty to perform an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.”


i.          Any legislation which legally compels doctors and other healthcare workers to act against their conscience, and their medical judgment, to perform or assist at abortions in some circumstances and refer for abortions in all circumstances is unconscionable and should be strongly rejected.


ii.          Such legislation undermines the moral integrity of healthcare workers; it makes a mockery of the idea of freedom of conscience.


iii.         Such legislation is unprecedented and will overturn the age old respect for freedom of conscience in professional healthcare and the conscientious exercise of professional judgement.  If this became an established precedent, it would carry with it considerable political and social risks.


iv.         Such legislation is at odds with the current positions adopted by the Australian Medical Association[3], the Royal Australian College of Nursing[4] ,The Royal Australian College of Physicians in their codes of professional behaviour [5]and by the National Health and Medical Research Council[6] in its code of ethics.



v.      Not only does the NHMRC uphold conscientious objection in its code of ethics, it includes a “no disadvantage” clause.[7]  Similar ‘no disadvantage’ clauses can be found in guidelines on organ donation and brain death, assisted reproductive technology (ART), the use of stem cells and medical research.


v.         A further consideration is that in Catholic institutions that require their health professionals to abide by their code of ethics will find it difficult to comply with the law or maintain their codes of ethics if the Bill is passed and professionals engaged in the institutions are obliged by law to perform or to refer for abortion.[8]


vi.             Contrary to the mistaken claims of the VLRC’s recommendations, the conscientious objection clause of the AMA’s code of ethics is absolute for doctors who regard certain procedures such as abortion as moral absolutes. It is not contingent on circumstances.[9]


vii.        The so called ‘emergency abortion’ scenario of abortion that invokes the overriding of a conscientious objection is misleading. There are alternative ways to manage risks to the life and health of a mother with a complicated pregnancy other than by direct abortion.  The alternatives to direct abortion in the management of complicated pregnancies are not referred to in this legislation. The failure to acknowledge this further invalidates the conscientious objection clause of this legislation. The many problems with the issue of ‘emergency abortions’ will be examined in its own section below.


3.      B. Conscientious Objection: Referrals


i.                     Under this Bill, doctors, nurses, pharmacists, psychologists and health social workers must refer for abortion if they are unwilling to advise or perform an abortion. However, many health practitioners who hold that performing or assisting at abortion is unethical also regard it as unethical to cooperate professionally in abortion by “referring to another whom the practitioner knows does not have a conscientious objection to abortion”. This requirement goes far beyond the statement in the RACP Ethics a Manual for consultant physicians which states: Personal Beliefs: When a personal moral judgment or religious belief prevents a physician from recommending some form of therapy, the patient should be told and given an opportunity to seek alternative care.[10]


ii.          Such a coercive provision is not consistent with other cases of conscientious objection in which there is never an expectation for the conscientious objector to be burdened with the responsibility of finding a non-conscientious objector to take their place and do what they themselves are unwilling to do for ethical and/or professional reasons.


iii.         In Catholic hospitals, doctors are expected to abide by the Catholic Health Australia Code of Ethic Standards which states: “Catholic facilities should not provide or refer for abortion..” A doctor may be put in a difficult position if what she is required to do by law is in breach of the code of ethics of the institution she is employed by and the requirement of the terms of her employment.


3. C. Conscientious Objection to Abortion is Not Unreasonable:


i.          A strongly held conscientious objection to abortion, properly defined, is both reasonable and justifiable. Abortion, in almost all situations, can be seen as a breach of the basic principle of medicine to ‘first do no harm’. It is also at variance with an ethos of medicine that respects and protects human life, and the obligation to care for the health and well-being of all members of the human family, especially the sick and most vulnerable.


ii.          Most doctors find the issue of abortion difficult and problematic because it inevitably involves the mutually incompatible ‘health’ claims of two human beings. The way in which abortion affronts the general ethos of medicine is reflected in the fact that very few doctors are willing to directly participate in abortion.[11]


iii.         Many doctors consider abortion to be more than a dilemma of incompatible interests; they regard the direct and intentional taking of human life to be always morally wrong and incompatible with their commitment to an ethos of medicine that respects and protects all human life; theyrecognise that there are equal obligations to protect the life and health of both mother and the unborn child she carries



4.      Regarding ‘Emergency Abortions’:


The legislation seeks to legally compel a ‘registered medical practitioner… to perform an abortion in an ‘emergency where the abortion is necessary to preserve the life of the pregnant woman”


a.         The concept of an ‘emergency abortion’, properly understood, is a fiction, which does not accord with current clinical practice.


b.         Genuine obstetric emergencies involving risk to the mother’s life, in the setting of either a complicated pregnancy, a medical emergency or severe trauma, are managed either by attempting to deliver a live birth, or by treating the underlying condition of the mother. Such management may indirectly cause the non-survival of the foetus. However, the non-survival of the foetus is not intended, rather is the unintended consequence of the management of the emergency condition of the mother. It cannot be considered to be the same as an abortion per se. It would not accord with universally accepted clinical practice if this distinction were not maintained.


c.         Such scenarios are commonplace in modern obstetric practice and are distinct from the issue of abortion. In early pregnancy, the most common scenario resembling the fiction of an emergency abortion is the management of ectopic pregnancy. In late pregnancy, there are many conditions that are termed ‘obstetric emergencies’ in which the pregnant woman’s health and life are at risk. Attempting a live birth in these circumstances is always the safer option if the woman’s life is in danger.  Many hold that late-term abortion is never medically necessary.[12] The management of these conditions, in which there may be risk of or a certainty of unintended foetal death, are considered to be ethically acceptable by virtually all doctors, they do not require any legislative mandates to ensure their provision. Such situations and their management should not be confused with or equated to abortion.


d.         The threat of suicide in a pregnant woman is a psychiatric emergency. An urgent abortion should not be considered to be an acceptable or necessary clinical option for an urgent psychiatric condition.


e.             Mandating ‘registered medical practitioners’ to perform an abortion in an emergency is unworkable and reflects a poor grasp of clinical realities. Very few doctors have the training or the skills to perform a surgical abortion and to do so would place the woman at considerable risk. The legislation does not specify what, if any, qualifications or training the ‘registered medical practitioner’ should have, nor where or in what context the ‘emergency abortion’ should take place. The possibility of an untrained Emergency Physician with conscientious objections being compelled to perform an ‘emergency abortion’ in a department cubicle is the absurd possibility that this legislation appears to mandate.


f.          The role and responsibilities of the anaesthetist are not defined or considered. Whose responsibility is it to decide whether a given situation constitutes the need for an ‘emergency abortion’? Will an anaesthetist be compelled to participate even if she disagrees with the assessment of the emergency situation given by the treating doctor? Will she be compelled to find another anaesthetist who will concur if she herself disagrees or if she conscientiously objects?


g.         This legislation as it concerns ‘emergency abortions’ lacks clarity and does not accord with current clinical practice. Using the law to compel conscientious objectors to be involved in this fictional quagmire is as unconscionable as it is unworkable.




5. Late-Term Abortions (post 24 weeks):


In section 5 of the proposed legislation, a registered medical practitioner may perform an abortion on a pregnant woman from 24 weeks until immediately prior to birth.


a. The inadequate and ineffective qualifications for late-term abortions.


 i.         The only qualifications needed for a late term abortion, even up until pre-birth, are that the abortionist  “reasonably believes that the abortion is appropriate in all circumstances” and has “ regard to the woman’s current and future physical, psychological and social circumstances.”[13]


ii.          These qualifications are so broad as to be meaningless. There is no substantive content or standards of measure. On these grounds, any woman who is distressed about the circumstances of her pregnancy qualifies for a late-term abortion. What woman seeking a late-term abortion would not be distressed, concerned or in difficulty in some way? It would be, by definition, impossible to establish that any late-term abortion was inappropriate. Doctors should take all reasonable steps to ensure that the distress and the reason for a woman seeking the abortion is not because of coercion, pressure or threats by another, or due to unrealistic concerns about the pregnancy.


 iii.        The only other provision is that the abortionist must consult one other registered medical practitioner who agrees it is appropriate, based on the same broad and meaningless grounds mentioned above.



iv.         The proposed legislation does not require a consultation by the second registered medical practitioner to form a second opinion. All that is required is that the abortionist consult with a colleague. The legislation does not specify whether this colleague need have any expertise in the area or any specialist training or qualifications.


v.         In this way, it would not be difficult to gain the consent of one other colleague. It would not matter that 5, 10 or more previous colleagues did not concur that the abortion would be ‘appropriate’. In practice, this provision would offer no real restriction or regulation to late-term abortions.


vi.         With such broad and ineffectual provisions, this legislation is effectively Model C of the VLRC’s recommendations but by another name…Model B. It only appears that Model B is a compromise position for the legislation because the letter B comes between A and C.


b. Late Term Abortion is Never Medically Necessary.


i.          In modern obstetrics, late-term abortion, properly defined, is never required to save the life or health of a pregnant woman. There are no medical or obstetric conditions that necessitate the intentional termination of the life of a viable, post 24 week foetus in order to save the life or health of the mother. Attempting a live birth is always a safer option if the woman’s life is in danger.



ii.          All complicated pregnancies that genuinely risk the mother’s health can be managed by attempting to deliver the foetus alive. Intentionally killing the late-term foetus prior to its delivery only adds unnecessary risks to the mother and should have no place in the management of complicated pregnancies in modern obstetric care.



iii.         The management of a complicated late-term pregnancy and a late term abortion both involve the mother undergoing an induced labour. They both carry the same risks with regard to labour complications.



iv.         The late-term abortion involves an additional procedure with additional risks that is performed in addition to expediting or inducing labour. Most commonly, this involves an ultrasound-guided needle inserted via the mother’s womb and into the foetus’ heart, injecting Potassium chloride (KCl) to bring about its death. This is done separately and prior to the subsequent induced labour.



v.         This procedure does not in any way reduce the risks of the subsequent labour for the woman undergoing a late-term abortion. On the contrary, it only adds risks. These include infection, haemorrhage and the risk of accidentally absorbing or injecting the harmful KCl solution into the woman’s system. It may also increase the risks to the mother by delaying an urgent delivery by seeking the uncommon expertise required for this procedure.



6. Support for Vulnerable Women:


This proposed legislation appears to offer no safeguards or provisions for vulnerable pregnant women.


a.         The decision to follow the  VLRC’s recommendations to reject any proposals for ensuring an adequate information and explanation process to ensure women are fully equipped to give informed consent to an abortion reflects  an unwillingness to acknowledge the seriousness of the decision making about difficult or unwanted pregnancy.


b.         The Bill has no provision for any cooling off period.  Such a cooling off period would be reflective of the very serious nature of the decision and would help give women space and time to digest and understand the information provided, also providing an opportunity to seek further explanation of clarification from the doctor if necessary.


c.         There are no requirements for mandatory referral to counseling to facilitate, rather than compel, the uptake of counseling opportunities so as better to support women’s discernment process in light of full information provision and to assist in identifying any external pressures, possible coercion, or unrealistic fears about the consequences of proceeding with the pregnancy.


d.         The psychological problems which afflict so many women after they have had abortions are well known, and should be addressed by any medical practitioner as a matter of course in the securing of the informed consent of a woman to the procedure.  The proposed legislation draws the attention of medical practitioners away from their duties of care at law and their ethical responsibilities.  The Lancet has also recently called for post-abortion counseling stating that: “the fact that some women do experience psychological problems after a termination should not be trivialised… Women choosing to terminate must be offered an appropriate package of follow-up care, which includes psychological counseling when needed.” ~ The Lancet, Aug 23, 2008


e.         The reason given for rejecting such provisions by the VLRC and accepted by the proponents of the Bill is that they would be an affront to the capabilities of women and their ability to make decisions. This speaks more of ideological commitments than it does of any genuine concern for the plight of women facing the difficult decisions of unexpected pregnancy.


f.          In many other fields there are processes, such as mandated referrals in the case of personal monetary or fiscal decisions, or cooling off periods in the case of many commercial transactions, that ensure that the right and appropriate decision is made. These provisions do not impugn the capabilities or the decision making abilities of the people concerned, but reflect the complexity and serious nature of the matters under consideration and the reality that misunderstandings or external pressures can impinge on free consent.


 g.        ` In addition, we note that the definition of a woman, as it pertains to abortion, which is given three times in the legislation, is “a female of any age.”[14] In view of the  case recently reported in Victoria, it is a great concern to us that the legislation does not seek to protect young and vulnerable women who may be at risk of abuse, incest or rape and who may be coerced and brought for an abortion by the perpetrator of the abuse, or forced into considering abortion as the only option by the withdrawal of supports. All women, especially vulnerable women, would have benefited from a system that regulated and facilitated information and support for their decision about abortion. It is puzzling and disturbing that this legislation has rejected this opportunity.



We thank you for considering our concerns and ask that you reject this proposed legislation.





[1]               Fleming J I, Ewing S. Give Women Choice: Australia Speaks on Abortion, Southern Cross Bioethics Institute, 26 April 2005. Can be viewed at  www.bioethics.org.au This is the most extensive and in depth research yet undertaken on the opinions Australians have about abortion.

[2]               The testimony of modern science is clear on this point: “At the moment the sperm cell of the human male meets the ovum of the female and the union results in a fertilized ovum (zygote), a new individual human life has begun.”Brookes & Zietman’s Clinical Embryology 1998.

                Also see: Hamilton & Mossman’s Human Embryology,  Anderson et al’s Mosby’s Medical, Nursing & Allied Health Dictionary 2002, Taber’s Cyclopedic Medical Dictionary, Arey’s, Developmental Anatomy, Thompson, Black’s Medical Dictionary, Carlson, Patten’s Foundations of Embryology 1996, Moore & Persuad’s Clinically Oriented Embryology, Sadler & Langman’s Medical Embryology, O’Rahilly & Muller’s Human Embryology & Teratology, Moore’s Essentials of Human Embryology, Sweeney’s Basic Concepts in Embryology.


[3]               AMA code of ethics:

Retrieved  2nd Sept 2008  http://www.amavic.com.au/page/About_Us/AMA_Code_of_Ethics/

“3 d. Recognise your right to refuse to carry out services which you consider to be professionally unethical, against your moral convictions, imposed on you for either administrative reasons or for financial gain or which you consider are not in the best interest of the patient.”


                Mr  Doug Travis, President, AMA Victoria, letter to the Premier of Victoria on 1 September 2008, stating, “The Bill infringes the rights of doctors with a conscientious objection by inserting an active compulsion for a doctor to refer to another doctor who they know does not have a conscientious objection. Respect for a conscientious objection is a fundamental principle in our democratic country, and doctors expect that their rights in this regard will be respected, as for any other citizen.” 


[4]               Royal College of Nursing Australia (2008) Position Statement: Conscientious Objection


Retrieved 2nd Sept 2008 www.rcna.org.au “.. employing organizations develop and implement policies recognising diversity in moral beliefs of their employees and  accommodate conscientious objection from employees without discrimination.”


[5]               Royal Australian College of Physicians: Code of Professional Behaviour              

Retrieved 03/09/2008 http://www.racp.edu.au/members/fyi/resources/codeOf prof Behav.pdf :RACP Code of Professional Behaviour 1.2.3,  II) ii.  be aware that he/she is not obliged to provide treatment in the setting where it is his/her professional judgment that the treatment would be either of no benefit or would harm the patient, or is considered unethical”


[6]               For example NHMRC National Statement on Ethical Conduct in Human Research Australian Government 2007 n. 4.1.14.

Retrieved 2nd Sept 2008 http://www.nhmrc.gov.au/publications/ethics/2007_humans/section4.1.htm


[7]               Ibid., The guidelines on use of foetal tissue in research state: ‘Those who conscientiously object to being involved in conducting research with separated foetuses or foetal tissue should not be compelled to participate, nor should they be put at a disadvantage because of their objection.’


[8]               The Catholic Health Australia Code of Ethic Standards states: “Catholic facilities should not provide or refer for abortion, that is procedures, treatments or medications, whose primary purpose or sole immediate effects is to terminate the life of a foetus or an embryo before or after implantation.”


[9]           See footnote 3 above.

[10]                 http://www.racp.edu.au/download.cfm?DownloadFile=7A2A9367-F870-EDB8- accessed 03092008 (may require site login)


[11]          See http://www.news-medical.net/?id=23764Experts in the UK are warning of an impending crisis in the National Health Service (NHS) regarding abortions. They say many doctors are opting out of providing such a service. According to Royal College of Obstetricians there has been a considerable rise in the number of doctors who are “conscientious objectors” to abortion.”

[12]          For example:“I believe that Mr. Clinton was misled by his medical advisors on what is fact and what is fiction in reference to late-term abortions. Because in no way can I twist my mind to see that the late-term abortions as described … is a medical necessity for the mother. It certainly can’t be a necessity for the baby. So I am opposed to… partial birth abortions.”- Pediatric surgeon and former Surgeon General of the United States, C. Everett Koop, in an August 19, 1996 interview with American Medical News

[13]             Italics added.

[14]             Italics added.

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