Every Conscience Matters
Last March, Dame Margaret Sparrow and I spent one sunny Wellington day, and two rainy ones, at the High Court, observing the proceedings in New Zealand Health Professionals’ Alliance v Attorney-General. At issue was so-called ‘conscientious objection’ in the new Contraception, Sterilisation, and Abortion Act 1977 (CSAA) as amended by the Abortion Legislation Act 2020.
Those who obstruct people’s access to abortion care like to call themselves ‘conscientious objectors.’ This allows them to borrow the mantle of courageous soldiers who refused to fight in WWI.
There is very little resemblance, however. Those soldiers suffered at the hands of military authorities, who punished them harshly for their refusal. The health practitioners do not suffer at the hands of authority figures — in the context of the doctor-patient relationship, they ARE the authority figures. It is patients who suffer delay in receiving time-sensitive care, and sometimes get an offensive lecture on their selfish, slutty morals as well.
The last time the NZHPA went to the High Court was 2010, and when the dust settled, patients’ rights had been gutted. The New Zealand Medical Council’s rule that objectors had to refer their patients to doctors who would help them was tossed aside. The plaintiffs argued that making a referral came too close to providing abortion care, and was too great a burden on their consciences. The court agreed, leaving New Zealand with some of the weakest medical objection rules in the world.
By taking this case to the High Court, the plaintiffs were trying to restore those old, weak rules, and maybe weaken them further.
As we listened to arguments last March, we hoped that, when balancing all the rights involved, the court would take into account the right of patients to receive safe, legal, time-sensitive health care, unburdened by delays.
Last week, the High Court handed down its decision. It was a cracker. The court upheld the new CSAA, finding that objectors must provide minimal assistance to their patients as required by law. The law does not limit the plaintiffs’ NZ Bill of Rights Act rights, and even if it did, those limitations would be demonstrably justified in a free and democratic society.
How did this case turn out so differently from the one in 2010?
There is a micro answer and a macro answer.
The micro answer is that everything was different — the defendant, the type of proceeding, the questions the court had to answer, and the considerations the court had to take into account.
The macro answer is that everything was different — it is a different world.
In 2010 abortion was a criminal justice matter; today, abortion is a health matter. Back then, approving an abortion was an act of discretion on the part of two certifying consultants that made an illegal medical procedure lawful. Now we have a right to safe, legal abortions up to the twentieth week of gestation. Abortion had public support in 2010; now that support is far more widespread.
Our hopes that the decision would take the rights of patients into account were richly rewarded.
The High Court judge, Ellis J, started out by quoting from Wilson J in R v Morgenthaler, the case that legalised abortion in Canada. Wilson J said
… I believe that the decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience?
Wilson J goes on to answer that it is the conscience of the pregnant person. Quoting her was a subtle way of signalling there were other consciences involved in this case besides the plaintiffs’. Ellis J followed that up by noting that timely access to abortion services is internationally recognised as a fundamental human right.
And it gets better.
The court applied a legal test to determine whether the plaintiffs’ beliefs were such that their manifestation deserved protection under human rights law. One element of the test is whether the belief is ‘consistent with basic standards of human dignity and integrity.’ The court observes that, to the extent the plaintiffs’ belief in the wrongness of abortion allows for no exceptions for the life or health of the pregnant person, for fetal anomaly, or for rape or incest, it might not meet that standard.
This confirms the existence of a human morality that actually empathises with people who can become pregnant, rather than demanding they sacrifice their plans, dreams, health, and even their very lives, to carry pregnancies they do not want. Who knew?
Ellis J also notes that the CSAA does not require much in the way of action from objecting health practitioners. It only requires them to give patients generic information about where to find the nearest abortion provider. She points out that
Indeed, many commentators suggest 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.
The duties the CSAA impose on objectors fall short of actual referral.
Ellis J also quoted from the criticism New Zealand received from the UN Committee on the Convention to Eliminate All Forms of Discrimination Against Women, which said
It is discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.
Furthermore, the decision holds that employers can differentiate between health practitioners who will provide abortion care and those who will not. This serves the purpose of ensuring care is available for pregnant people in harder-to-serve areas of the country without undue delay. Parliament was entitled to set it up this way.
The decision is written from the standpoint that the lives and consciences of pregnant people count for just as much as those of health practitioners. That is fundamental change.
The tone and substance of this decision show the difference legalising abortion has made in Aotearoa. Abortion is no longer an exception to the rules — it is health care. People have a right to health care.
Issues from NZHPA v Attorney-General
The plaintiffs took issue with the new sections 14 and 15 of the Contraception, Sterilisation, and Abortion Act 1977 (CSAA).
Section 14 says when patients ask refusing health practitioners about abortion care, they must tell the patient
- of their objection
- how to access the contact details of the nearest provider who can help them
Section 15 says employers of objecting health practitioners must accommodate their objection unless doing so would cause unreasonable disruption.
The NZHPA claimed that ss 14 and 15 limit their rights under the NZ Bill of Rights Act 1990. They asked the court for a declaration that those sections are inconsistent with the NZ Bill of Rights Act. These are some of the more important rights they said were in question:
- freedom of conscience
- freedom to manifest religion
- freedom of expression
The plaintiffs’ claims about their rights to freedom of association, freedom from discrimination, and the rights of minorites were dismissed for lack of evidence.
Summary of key findings
Freedom of conscience and freedom to manifest religion:
These two are related; they are kind of the same thing in different spheres.
Freedom of conscience is internal — its exercise does not affect others. It is absolute — trying to change someone else’s conscience is never justifiable.
Manifestation of religion is external. Its exercise can affect others, so its limitation can be justified if it infringes their rights. Here it affects the rights of patients to receive timely medical care without unreasonable delay.
Freedom of conscience is not engaged because the CSAA limits actions, not thoughts. Its purpose is not to change the minds of the objectors, and in fact, the evidence shows it does not.
Freedom to manifest religion is also not engaged because the obligations imposed by the law are minimal. Further, refusing to provide someone with information on how to contact a provider is not a manifestation of religion, nor does providing the information in compliance with the law limit the plaintiffs’ ability to manifest their religion in other ways.
This section contained one of my favourite quotes:
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.
Freedom of expression:
Freedom of expression is engaged, but is not limited to a sufficient degree because objectors are free to attribute their passing on of the information to Parliament, and to give their own opinions at the same time.
(I cringed a bit at that, remembering some of the stories I’ve heard from patients who were denied care. Anyone who finds themselves on the receiving end of a slut-shaming conversation should write down what was said, as accurately as you can, and make a complaint to the Health and Disability Commission against that health practitioner. Or you can contact ALRANZ to explore other options.)
The court also noted that objectors’ refusal to supply information infringed patients’ right to receive information, which is also part of freedom of expression in the NZ Bill of Rights.
Justification under the NZ Bill of Rights Act 1990 s 5
Having found that none of the plaintiffs’ claims were made out, Ellis J could have stopped there. But she went on to consider whether any limit on any of the rights in question could be demonstrably justified in a free and democratic society.
Section 14 has the legitimate objective of facilitating access to abortion in a timely way. The duty to provide information about how to get contact details for the nearest provider is rationally connected to that objective. Any impairment of rights is minimal and remote. Parliament was entitled to choose this section as the means of facilitating timely access to abortion care.
Section 15 has the same objective of facilitating timely access to abortion care, and further accomplishes the objective by ensuring people in less populated rural environments can access care locally. Any limitation minimally impairs the plaintiffs’ rights because the limitation only arises when an objection cannot be accommodated without unreasonable disruption. Parliament was entitled to strike the balance it did.
If any of the claims were made out, the limitations they produced would still be demonstrably justified in a free and democratic society.
The High Court’s decision is a victory for patients’ rights. By treating patients’ and health practitioners’ consciences as equally deserving of consideration and protection, it has made society a bit more equal.
