The announcement by the ACT government that it is compulsorily acquiring Calvary Public Hospital has far-reaching ramifications for freedom of religion and freedom of conscience in Australia.
[You can listen to Professor Howe discuss the legal and ethical implications of the ACT government’s decision to acquire Calvary Public Hospital with Andrew West on the Religion and Ethics Report.]
The ACT government asserts that its decision has nothing to do with religion, stating that negotiations with Calvary had broken down because they had been unable to reach an outcome that met the health needs of the Territory community.
Reading between the lines, however, this compulsory acquisition is because Calvary Hospital and the ACT government had a fundamental disagreement over the definition of healthcare. For the government, the provision of abortion is non-negotiable, whereas Calvary Hospital relies on institutional conscientious objection to refrain from participating in abortion based on the conviction that it is morally wrong to intentionally end a human life.
In my view, the decision to compulsorily acquire Calvary Hospital is driven by ideology and not efficiency, as the Health Minister Rachel Stephen-Smith asserts. Walter Abheyeratna, the ACT president of the Australian Medical Association, acknowledged as much when he said it was important to deliver public healthcare services without being bound by ideology.
Why the decision rests on shaky grounds
Leading up to ACT government’s announcement, there appears to have been a concerted effort to undermine Calvary Hospital because it does not provide abortion services. Less than a month ago, a parliamentary committee produced a report which devoted considerable attention to attack Calvary Hospital’s lack of abortion provision, resulting in significant media scrutiny of the hospital.
The report, unfortunately, comes across as one-sided. Consider, for instance, the way the glossary describes abortion procedures, euphemistically, in terms of “dilation and evacuation … [as] suction and medical tools are used to empty the uterus”. At a bare minimum, an accurate statement should include that, after dilation, the foetus and placenta are removed using forceps or other instruments. The introduction to the report, moreover, makes it clear that the report’s authors are taking a strong normative position in favour of abortion:
[T]he reversal of Roe v Wade epitomises the need for ongoing protection of reproductive rights. The inquiry and this report stand as a concerted initiative as part of this overarching and necessary vigilance.
I would contend that the report is not well researched, is poorly written, and employs a weak evidence base to substantiate its position. Two examples will suffice. In the introduction, the authors state:
The outrageous Roe v Wade decision from the USA has prompted Australian women to reflect on the various states of legality applicable across all jurisdictions in Australia and importantly to start a loud conversation about the actual access to services.
Leaving aside the value-laden designation of the relevant decision of the US Supreme Court as “outrageous”, and the fact that the authors surely mean the Court’s ruling in the matter of Dobbs v. Jackson Women’s Health Organization (2022), which effectively overturned Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992), this assertion about the effect of the decision on Australian women lacks an evidential basis. The citation provided is a submission from EMILY’s List Australia, which is a political organisation aimed at getting pro-choice women into parliament through the Australian Labor Party. To use a lobbyist to substantiate a self-serving claim that Australian women are outraged by Roe v. Wade would not be acceptable in an undergraduate essay, let alone a parliamentary committee report. The type of evidence which could support such a claim would be opinion polling, attendance at pro-choice marches after the overturning of Roe v. Wade, or qualitative interviewing with Australian women.
A second example is when the parliament committee declares its support for extending the provision of abortion pills through nurses, and cites the submission by Marie Stopes International. They claim that this will release doctors “to do more complex work” and state that “nurses are more than proficient to deliver some of the work, such as medical abortion under nine weeks”. Again, to use the submission of an abortion provider who has a vested interested in the provision of abortion pills by means of nurses, because it will reduce their costs, points to the lack of robust research in the report.
There are other claims in the report which are made without any reference to evidence whatsoever. The report alleges that, while the decriminalisation of abortion in Australia has ended “punitive responses … from the State”, such responses “prosper at the hands of the Church”. The report then directs readers to sections on “Calvary Hospital” and “Stigma and Harassment”, but nothing in these sections bears out this claim. Indeed, it is striking that no examples of punishment by “the Church” are provided in the report. Even the reference to “the Church” is unclear — do the report authors mean Christian churches, or the Roman Catholic Church or some other church? The lack of clarity and precision in a parliamentary report is disconcerting, especially when its recommendations have profound real-world consequences.
A hospital’s religious ethos under attack
This brings us to the specific section in the report which criticises Calvary Public Hospital because it does not provide abortion. The absence of a similar critique of Canberra Hospital, which also does not provide elective abortion, underscores the underlying concern that the attack on Calvary Hospital is based on its Catholic ethos.
The section on Calvary Hospital devotes considerable space outlining and reflecting on the alleged experience of a woman who had been turned away from Calvary Hospital following an incomplete miscarriage, after refusing to provide a “dilation and evacuation” because of the institution’s conscientious objection to abortion. The report does not accord procedural fairness to Calvary Hospital in that it fails to extend the opportunity to respond to this allegation. In fact, when the report was published, Calvary Hospital made it clear that they do perform dilation and evacuation for retained products of conception during a miscarriage. The hospital disputes, moreover, that the alleged situation ever occurred.
Nonetheless, the report recommends that Calvary Hospital “provide full reproductive health services”. It states unequivocally that:
it is problematic that one of the ACT’s major hospitals is, due to an overriding religious ethos, restricted in the services that can be delivered … [It is clear that] the aforementioned patient’s experience is unacceptable and that the ACT Government needs to address what the Committee perceives as an ethically fraught dependence on the Sisters of the Little Company of Mary for provision of health services.
The importance of conscientious objection
The fundamental problem with first attacking and then forcibly acquiring Calvary Hospital because it won’t perform abortions is that it overrides Australia’s longstanding tradition of freedom of religion and freedom of conscience.
Freedom of conscience is a foundational principle of a pluralist democracy like Australia. It is a commitment that values human dignity and integrity, and promotes a society in which a healthy diversity of views is tolerated. Freedom of conscience protects institutions and individuals who hold moral or religious views from compulsion. Forcing doctors, nurses, and midwives to participate in abortion — whether directly or indirectly — undermines this principle. The benefit of institutional conscientious objection is that Catholic hospitals and other faith-based medical facilities can provide safe harbours for individual health-care professionals who conscientiously object to abortion.
Violating institutional freedom of conscience by forcibly acquiring Catholic hospitals like Calvary Hospital is likely to create systemic risks for the medical profession in Australia. It will dissuade doctors, nurses, and midwives with a conscientious objection to abortion from remaining in the profession. It may also inhibit medical students with a similar moral persuasion from entering the profession, or certain specialities within the profession. After all, regulation that seeks to override conscientious objection is generally ineffective in the face of genuine and strongly held beliefs. Such an approach risks reducing the access to healthcare for everyone and creating a monocultural medical profession. This would be a most unfortunate outcome in a profoundly multicultural, multi-faith country like Australia.
Ultimately, conscientious objection seeks to balance the interests of the individual and the interests of society. Freedom of conscience protects the rights of individuals to adhere to a religious and ethical position, independent of others’ viewpoints and regardless of others’ objections. Conscientious objection also involves complex questions about the interaction between religion and state, morality, personal autonomy, integrity, and individual and societal good. The areas where it is asserted tend to excite passionate disagreement. In this case, conscientious objection to abortion is seen to be stigmatising abortion by those from the opposite perspective.
This is no trivial matter. Catholic hospitals account for around 10 per cent of the country’s total hospital services and treat more than 1.5 million Australians annually. The decision of the ACT government to compulsorily acquire a faith-based institution does not bode well for the future of faith-based schools and hospitals in Australia.