Reproduced in the Link-Zone pages with the kind permission of the author: SP18/08

Denying people right to conscience akin to fascism



By Professor Greg Craven

Professor Greg Craven, lawyer and academic, commenced as Vice-Chancellor of Australian Catholic University (ACU National) in February 2008. An expert in public law, Professor Craven has published numerous journal articles and four books.

September 2008

How can civil libertarians deny others a right they fight for?

ONE of the great truths of life is that everyone loves rights. We love them when we have them. But we particularly love them when we can loftily confer them on somebody else. So satisfying. The problem is that being a rights-giver carries its own challenges. Anyone will defend a right they like or a minority of which they approve. But the real test is whether you are prepared to stick up for the uncongenial rights of groups you just do not care for.

This is the test set by proposed abortion legislation for various members of the Victorian Parliament and assorted civil liberties glee clubs such as Liberty Victoria. So far, they are failing it like a fencepost sitting VCE physics.

Oddly enough, the immediate issue here is not the vexed one of abortion, which admittedly raises vastly different reactions in different sections of the community. Rather, the issue is freedom of conscience.

This centrality of conscience in rights discourse hardly is surprising. Of all the rich and varied freedoms, the freedom to think and believe is fundamental. Without it people not only have fewer human rights, they are less human.

At present, the extent to which the state of Victoria seriously values the right to conscience is squarely raised by a number of requirements contained in the Abortion Law Reform Bill. The one most likely to become a daily monstrosity is that a doctor with an objection to performing abortion is required to refer a patient to a practitioner without that objection.

The meaning of the provision in question is patently clear, remarkably so in a bill with the general drafting clarity of Yarra mud. If a doctor with a moral or religious objection to abortion is confronted by a patient requesting one, he or she is to pass them on to someone they know will grant the request.

Attorney-General Rob Hulls deserves genuine admiration for voting against this grotesque bill, but is deeply unconvincing in his suggestion that just because someone is being referred to a known abortionist does not mean they are being assisted in getting an abortion.

In fact, it is this concept of assistance and contribution that lies at the heart of one of the nastiest human rights abuses Victoria ever has contemplated. By compulsorily referring a patient for an abortion, an objecting medical practitioner necessarily makes him or herself complicit in an action they regard as ethically and morally impossible.

No other conclusion is logically possible in relation to this or any comparable situation. Would Liberty Victoria exonerate a public official who, when told to inflict harm on some racial or other minority, turned to the operative next to them and said: "I refuse — so you do it instead"? Hardly. Moral responsibility is profoundly adhesive.

Quite beyond the case raised by this bill, the implications of this savage intolerance of individual conscience are deeply worrying. Where will this hyper-secularist disdain for the rights of those with "misguided", "individual", "subjective" and "bigoted" opinions — to quote a few terms flying about in public debate — go next? It certainly makes one reflect deeply, for example, on obnoxious European laws proposing that Islamic and other religiously distinctive elements of personal appearance be banned from public schools. The same intolerance of personal conscience and elevation of "public good" runs in a frigid, clear stream from the Elysee to Spring Street.

Almost equally worrying has been the profound unawareness of those defending these genuinely fascist positions that they are under the slightest obligation to provide cogent arguments to support the unsupportable. Anne O'Rourke's recent misfire in The Age is a depressingly excellent example.

Essentially, O'Rourke was wrong. We were told that hospitals do not have rights, but presumably doctors and nurses do. We were reassured that there were precedents, which should make any real supporter of rights feel worse. We were told these conscience provisions matched those in other states, when there are clear and obvious differences. Finally, we were told the Victoria Law Reform Commission had done all the necessary thinking, so we should not bother our pretty heads.

What is wrong with rights protagonists when they can detect every genuine flaw in migration law, every undeniable botch in anti-terror legislation, the slightest inadmissible restriction on freedom of speech, and yet blithely deploy the most unconvincing legal sophistry in defence of a provision that will require medical practitioners to commit acts rendering their freedom of conscience as much a legal fiction as the Australian monarchy?

Nor are we just talking doctors here. Compulsive provisions of the bill place corresponding duties on nurses and pharmacists to assist. What we are facing is a state coercion of fundamental conscience on a scale undreamt of since the Vietnam War.

When Archbishop Denis Hart says that Catholic health services could be compromised or withdrawn in the face of this coercion he is speaking an obvious truth that conscientious objectors from Albert Langer to Mahatma Gandhi would understand. You cannot touch pitch and remain undefiled.