Do hospitals have rights?

The Charter has made the front page of the Age twice in two days, both curiously on the issue of abortion, despite Charter s. 48, which provides that nothing in the Charter ‘affects any law applicable to abortion or child destruction.’ While the Minister took the view that Charter s. 48 removes any obligation to provide a statement of compatibility (and hence none was provided), SARC questioned whether Charter s.48 has any impact on the debate over bills, which aren’t laws and aren’t affected by the Charter.

Possibly to the surprise of some, the Charter has been raised almost exclusively by the pro-life side of the debate. They’ve picked their issue cleverly, focusing not on the abstract debate about whether or not foetuses have human rights but instead on Charter s. 14:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including- (a) the freedom to have or to adopt a religion or belief of his or her choice; and (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Catholic Archbishop Denis Hart wrote, in a ‘pastoral letter’:

The Bill is an unprecedented attack on the freedom to hold and exercise fundamental religious beliefs. It makes a mockery of the Victorian Charter of Human Rights and the Equal Opportunity Act in that it requires health professionals with a conscientious objection to abortion to refer patients seeking an abortion to other health professionals who do not have such objections. It also requires health professionals with a conscientious objection to abortion to perform an abortion in whatever is deemed an emergency. The Bill is clearly intended to require Catholic hospitals to permit the referral of women for abortions…

Catholic hospitals and the large number of Victorians they serve are also in a vulnerable position. Catholic hospitals will not perform abortions and will not provide referrals for the purpose of abortion. If this provision is passed it will be an outrageous attack on our service to the community and contrary to Catholic ethical codes. It will leave Catholic hospitals and doctors with a conscientious objection to abortion in a position where they will be acting contrary to the law if they act in accordance with their deeply held moral convictions. This Bill poses a real threat to the continued existence of Catholic hospitals. Under these circumstances, it is difficult to foresee how Catholic hospitals could continue to operate maternity or emergency departments in this state in their current form.

In an op-ed in today’s Age, Liberty Victoria Vice-President Anne O’Rourke responds to this Charter claim:

The Victorian Charter of Human Rights and Responsibilities does indeed guarantee a right to freedom of thought, conscience, religion and belief, as Archbishop Hart points out. There are two errors in his claim, however. The first is that only human beings, not hospitals or related entities, have human rights

O’Rourke here relies on Charter s. 6(1), which provides that ‘[o]nly persons have human rights’. This provision reflects traditional human rights advocates’ dislike of corporations. Indeed, the Victorian Law Reform Commission, whose recommendations are responsible for the Abortion Law Reform Bill’s ‘conscience clause’, expressly adopted this prejudice as a reason to reject the approach taken in Western Australia of providing every ‘person, hospital, health institution, other institution or service’ with a conscience clause. The VLRC wrote:

As freedom of conscience is generally understood to be held by individuals, the conscience
provision should not extend to corporations. This is consistent with existing conscience
provisions in other Victorian laws. The danger in extending the provision to institutions is that it may establish a precedent of corporations holding interests that could be categorised as human rights. This could lead to perverse outcomes.

What are those ‘perverse outcomes’? A footnote explains:

See, eg, RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199. Free speech extends to commercial speech—tobacco advertising laws contravened freedom of expression. There is no reason to extend the provision to organisations because the new law of abortion will not establish a positive duty to perform abortions.

Yes, that old furphy, the supposedly controversial extension of freedom of expression to commercial – not corporate – speech. Not only was the Supreme Court of Canada’s decision in that case entirely correct – tobacco sellers were barred from saying that required health warnings were from the government, not them; and the Canadian government declined to provide any evidence for why less broad bans would fail to achieve the desired effect; remedying both defects led to the Supreme Court upholding the new law – but it is, at best, an argument for restritcing free expression, not other rights. The real gripe of Australian human rights advocates with the Canadian case, and corporations in general, isn’t any analysis of the decision – there’s NEVER anything more than a footnote – but anger that the Canadian government’s shoddy lawyering gave the anti-Charter mob a free kick. While the rejection of corporate human rights is sometimes belatedly justified by their supposed power (and hence the potential for them to ‘abuse’ human rights), that objection is scarcely applicable to all non-human entities. Since when have hospitals and health providers been deep pocketed abusers of legal rights?

O’Rourke’s reliance on the limitation of human rights to humans is transparently specious in this case. No-one’s claiming that the hospitals (e.g. the building?) have a freedom of conscience. Rather, Hart’s claim is made on behalf of the many human beings with a stake in such hospitals, including donors, managers, employees, patients and Catholics in general. Indeed, Charter s. 14(1)(b) expressly refers to people demonstrating their believes ‘as part of a community’. O’Rourke (like the VLRC) does the pro-choice side an enormous disservice by relying on a miserly technical knockout, especially one whose flaws are transparent to lay people. Liberty Victoria ought to disown this risible use of Charter s. 6(1).

O’Rourke is on much stronger ground in relation to her second argument, based on Charter s. 7(2):

The other is found in the charter: human rights are “subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”. The lives of women must weigh in that balance.

This is the very issue that Parliament ought to be considering, and that would have been addressed if there’d been a statement of compatibility. Alas, it was not expressly considered by the VLRC in making the recommendations that led to clause 8.

The VLRC’s discussion of the need for a manadtory referral clause was as follows:

Evidence gathered in consultations suggests that significant geographic inequities exist in access to abortion by women living in rural and regional Victoria. The problem may be exacerbated by a practitioner’s refusal if he or she is the only practitioner in an area, or if all or most practitioners in an area refuse to provide services. This inequity is further entrenched if major regional public facilities do not provide abortion, or if the practitioner refuses to make a referral. While conscience provisions are relatively common in abortion laws, there is significant variance as to their scope. In framing a provision, it is important not to trivialise the important ethical consideration of the best interests of the patient.

A well-drafted conscience provision should ensure that conscientious objection is based on adequate justification and not mere prejudice. It should operate in a transparent manner to minimise the risk of women being demeaned or poorly treated if they seek abortion.In particular, it should strike an appropriate balance between people within the therapeutic team complying with their personal moral values and those individual moral values not becoming institutional or geographic barriers to the timely provision of safe services….

The VLRC’s ill-chosen reference to ‘adequate justification’ and ‘prejudice’, which scarcely seems appropriate in a discussion of freedom of conscience, was condemned by Hart:

In its report on Abortion Law Reform, the Victorian Law Reform Commission created a false dichotomy in relation to conscientious objections, a dichotomy between “adequate justification” and “mere prejudice”. This was subsequently relied upon in debate in the Legislative Assembly. The position of the Church is postulated as “mere prejudice” and without “adequate justification”.

The Church’s position which it has held ever since the first century is clear. The procurement of and complicity in abortion in every circumstance is a moral evil. It is an affront to logic to suggest that a belief held over the life of the Church’s existence and which has been subject to rigorous examination by theologians over the centuries can be dismissed as a “mere prejudice”. If this argument were to prevail, the beliefs of all religious faiths could be similarly dismissed. The argument itself smacks of prejudice, is a direct attack on religious expression and unworthy of a place in a contemporary mature state which values diversity of thought.

The VLRC concluded:

A conscience provision should only cover the abortion procedure itself. It should not prevent the effective after-care of women who have had abortions. Nor should it encourage health providers to avoid giving women accurate information about abortion, including alternative providers. As a minimum standard of care, practitioners should refer the woman appropriately.

That last sentence was referenced with the following footnote:

National Health and Medical Research Council, An Information Paper on Termination of Pregnancy in Australia (1996) 19. Note: in 1996 the NHMRC released an information paper which included recommendations from an expert panel commissioned by its Women’s Health Committee. Due to a range of opinions within the NHMRC, it did not endorse the recommendations of the panel, instead releasing the panel’s findings and recommendations as an information paper.

The editorial writers of the Age, who had previously endorsed the Bill, weren’t convinced:

It is not necessary to coerce conscience in this way in order to decriminalise abortion. Indeed, such coercion may make the goal harder to achieve, because of the deep divisions in the community over abortion. Some argue that to remove the clause from the bill would deny the right of patients to full information, but information about pregnancy termination services is already widely available, and its availability will not diminish when abortion is decriminalised. What would diminish, though, is the respect in which the rights of conscience have hitherto been held — a respect that is an integral part of a flourishing liberal democracy.

The coming debate in Victoria’s Legislative Council over clause 8 may well see unprecedented reference to and analysis of the Charter, especially Charter ss 14 and 7(2). What a pity that the government’s view of Charter s. 48 prevented it from being inolved in this debate from the get-go.

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