By Quincy Nguyen
In August 2019, Prime Minister Scott Morrison unveiled a draft of the Government’s controversial Religious Discrimination Bill 2019. The purpose of this Bill is to provide protection against discrimination on the basis of religious belief or activity in key areas of public life, including in the provision of healthcare.
However, the first draft of the Bill drew immense criticism from human rights groups for its discriminatory impact upon women and their ability to exercise their reproductive health rights. A revised draft of the Bill was released, but the second draft retains many of the problematic provisions. The second draft does no more than the first to protect women from being denied access to reproductive healthcare based on the religious beliefs of their health practitioners.
Here are four ways the revised draft of the Religious Discrimination Bill 2019 affects women’s rights to reproductive healthcare:
1. It allows medical professionals to conscientiously object to providing health services such as contraception or abortion
Under sections 8(6) and 8(7) of the revised Bill, health practitioners can conscientiously object to providing or participating in a particular kind of health service on the basis of their religious beliefs, unless the objection would amount to an ‘unjustifiable adverse impact’ on the health of the patient. These two provisions disproportionately affect women, as many services predominantly needed by women, such as long-term contraception, emergency contraception, abortion, and fertility treatments, are regularly objected to on religious grounds. The revised Bill makes clear that a conscientious objection must be to a procedure, not a particular category of persons. Although this is difficult to reconcile when conscientious objections to certain health services, such as emergency contraception or abortion, are indirectly targeted at women.
Furthermore, the Bill may pose a significant barrier for women who live in regional and rural areas, where access to healthcare is limited. The Explanatory Notes explain that, if the sole doctor in a rural town conscientiously objects to a woman needing contraception, it may constitute an ‘unjustifiable adverse impact’, as the woman may not be able to promptly access an alternative provider. However, ‘unjustifiable adverse impact’ is not defined in the Bill, so each situation of conscientious objection would need to be individually assessed, providing no security for women who need timely access to reproductive healthcare.
By protecting health practitioners who raise conscientious objections, the Bill threatens women’s equitable access to healthcare and puts them at risk in circumstances that could be time sensitive. As the Human Rights Law Centre has expressed, ‘patients must be able to access the health services they need without discrimination or delay’.
2. It does not include provisions obligating medical professionals to refer patients to an alternative provider
At present, several Australian states, including New South Wales and Victoria, provide for conscientious objection to abortion, but health practitioners are obligated to refer women to an alternative provider who they know does not have a conscientious objection. Such obligations ensure the right balance is struck between the freedom of religion and ensuring equitable access to healthcare. Yet no such obligations exist under this Bill. This is concerning, because the Bill will override the legislative efforts of states that help women who have been denied a service to access another practitioner that can help. Women’s Health Victoria has argued that, without referral obligations, ‘the Bill undermines the ethical and professional obligation of health professionals’ to deliver safe and necessary healthcare, free from the influence of their personal values.
The United Nations’ Committee on the Elimination of Discrimination against Women has recommended that states introduce measures to ensure women are referred to alternative providers if a health practitioner refuses to perform a service. As a party to Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Australian Government should look to align the Bill with CEDAW by incorporating referral obligations for health practitioners.
3. It allows medical professionals to express their religious beliefs to their patients
Under section 42 of the Bill, making a ‘statement of belief’ does not constitute discrimination under any federal, state or territory anti-discrimination laws. This means that the Bill establishes protections for health professionals to make potentially offensive, intimidating and derogatory statements to their patients based on their religious beliefs, which may well include references to their support or lack of support for women’s reproductive rights. By allowing health practitioners to make such statements, the Bill prioritises the religious views of the practitioner over their patient’s healthcare needs and limits the ability of health providers to implement policies designed to create safe and inclusive spaces for their patients. Equality Australia has recommended that this clause be removed from the Bill, as it provides people with a ‘licence to discriminate against others’.
4. It worsens the stigmatisation women already face in accessing reproductive healthcare
Finally, the Bill creates additional barriers for women who already experience stigma in accessing reproductive services such as abortion. Julie Keys, Team Leader from Women’s Health Victoria has expressed that ‘women also experience significant psychological distress and stigma when they find their trusted health care providers will not enable them to access a service they are legally entitled to, whilst placing moral judgement on their reproductive choices’. Therefore, it is important that the Bill undergoes significant amendments to ensure that the stigma women face in asserting their reproductive health rights is not exacerbated under the Bill.
Quincy Nguyen is in her final year of a Bachelor of Laws/Arts degree at UNSW Sydney and was the Student Associate Editor for the Australian Journal of Human Rights in Term 1 2020.