If a doctor has to give a patient information that will allow her to obtain an abortion, does that breach the doctor’s rights?

In 2021, the New Zealand Health Professionals Alliance (NZHPA) sought a declaration that the recently-amended abortion law unjustifiably limited their members’ rights to freedom of conscience and religion. The Contraception, Sterilisation and Abortion Act 1977 (CSAA) had been changed to allow abortion on demand up to 20 weeks’ gestation. After that, abortion is permitted where a qualified health practitioner considers it “clinically appropriate in the circumstances”, including the woman’s physical and mental health and “overall well-being”, and where they have consulted at least one other qualified health practitioner.

The revised law recognises that a health practitioner may have a conscientious objection to abortion, but says that she or he must tell the patient “how to access the contact details of another person who is the closest provider of the service”.

The NZHPA objected to this information requirement, saying that it “would make them complicit” in providing an abortion contrary to their beliefs. They sought a declaration that the requirement was inconsistent with their rights affirmed by the New Zealand Bill of Rights Act 1990 (NZBORA).

A contest of rights

Ellis J framed the case as a contest between rights relevant to conscientious objection, and a woman’s “indisputable and fundamental rights” that support her ability to access an abortion.

Abortion-access rights are to be found, she said, “in a number of international human rights instruments”. Her Honour relied on General Comments of UN committees to say that the International Covenant on Economic, Social and Cultural Rights requires the provision of abortion as part of providing “the highest attainable standard of physical and mental health”, and similarly that the Convention on the Elimination of All Forms of Discrimination against Women prohibits “denial or delay of safe abortion ...[and] forced continuation of pregnancy” as forms of “gender-based violence.”

She also drew on Canadian jurisprudence, particularly the judgment of Wilson J in R v Morgentaler [1988] 1 SCR 30, who held that abortion limitations violated a woman’s right to “life, liberty and security of the person” in section 7 of the Canadian Charter of Rights and Freedoms.

By contrast, the rights supporting a health practitioner’s conscientious objection were to be found in New Zealand legislation, and Ellis J considered them one by one.

Freedom of thought, conscience and religion

Section 13 of the NZBORA provides that “[e]veryone has the right to freedom of thought, conscience, religion and belief”. NZHPA argued that the information requirement was inconsistent with this right.

Ellis J referred to the government’s 1985 White Paper that described the pre-enactment policy of the NZBORA. She noted that the White Paper said that section 13 is “essentially concerned with the internal, subjective element”. That is, it relates to a person’s internal freedom of thought and conscience, not to their external expression of those things. As a consequence, it is an absolute freedom; there are no permissible limitations on a person’s purely internal thoughts.

But this did not assist NZHPA. In fact, Ellis J held that section 13 was not engaged at all because the plaintiffs’ objection, she said, was to having to act in a certain way, not to having to think in a certain way. “Indeed,” she went on, “the evidence makes it clear that the plaintiffs remain steadfast in their beliefs.”

Freedom to manifest religion or belief

Section 15 of the NZBORA provides that “[e]very person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching”. Even though the plaintiffs objected to having to act a certain way, that did not mean their right under section 15 was necessarily engaged.

Ellis J noted that the CSAA did not require objecting doctors to actively refer a woman for an abortion or to contact an abortion provider, or even to give her an abortion provider’s contact details. Rather, a doctor could satisfy the information requirement by saying something like, “the Epsom Day Unit is the closest provider of abortion services for women in their first trimester. You can access the Unit’s contact details by going to the Ministry of Health website.”

Her Honour said that the right to “manifest” religion or belief in “observance” or “practice” does not necessarily protect actions which are merely “motivated” by that religion or belief. (Manifestation by “worship” or “teaching” were not in issue.) There must be “a sufficiently close and direct nexus” between the religious belief and the conduct in question, such that they are “intimately linked”. She considered that there was no evidence to establish this nexus; that is, there was no evidence before the Court that proved that NZHPA’s objection to the information requirement was sufficiently connected to their beliefs. While NZHPA attempted to demonstrate this by referring to established Catholic teaching, Ellis J “imagine[d] ...that many adherents of that faith now honour a good part of it only in the breach,” giving as an example the then-US President Joe Biden, a professing Catholic and supporter of abortion rights.

But even if there was evidence to establish that nexus, she said, the information requirement did not engage the section 15 right:

I do not consider that the provision of information ... engages the notions of practice or observance. It is far from clear to me why—particularly in the case of the minimal and remote act required by [the CSAA]—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. Indeed, many commentators suggest that 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. ... And [the CSAA] stops short of requiring even a referral.

Lastly, she said, “complying with [the information requirement] does not prevent the plaintiffs from manifesting the relevant belief in other ways.”

Her Honour also cited international cases to the effect that “when questions of ‘manifestation’ arise ... a belief must satisfy some modest, objective minimum requirements. ... The belief must be consistent with basic standards of human dignity or integrity.” Although she did not resolve this point, Her Honour suggested that the plaintiffs’ pro-life position might not have been consistent with those basic standards.

Freedom of expression

Section 14 of the NZBORA provides that “[e]veryone has the right to freedom of expression”. This includes “the freedom not to be compelled to say specific things or to provide certain information”.

But, said Ellis J, doctors with a conscientious objection to abortion could still share their beliefs about abortion with their patient, and could tell her that it was Parliament that was forcing them by law, contrary to their conscience, to provide the specified information. And, she said, the patient herself had a section 14 freedom to seek and receive information.

Her Honour held that there was no limitation of objecting doctors’ freedom of expression.

Freedom from discrimination

NZHPA also argued that the information requirement breached section 19 of the NZBORA, which says that “[e]veryone has the right to freedom from discrimination” on grounds that include religious belief. But, said Ellis J, those objecting to the information requirement do so on the basis of their conscientious objection to abortion, not because of their faith. Therefore, the section 19 right was not engaged.

Justification

Where rights are limited, those limitations may still be lawful if they are “reasonable” and “demonstrably justified in a free and democratic society”. Even though she did not consider that any of the NZBORA rights were limited, Ellis J considered this issue for completeness.

She held that the objective of the information requirement is to promote “fundamental and internationally recognised human rights”. And the requirement was proportionate to that objective because it “minimally impairs” the rights of an objecting doctor. “Parliament was entitled to determine how best to achieve the important social policy objective of increasing timely access to abortion services”, and so even if there were any limits on NZBORA rights, they were justified.

NZHPA’s claim failed on all counts.

Comment

It is striking that Ellis J gave more weight to rights found in international instruments and cases—and to the commentary about those rights—than to the rights in the NZBORA itself. Her framing of the case as a matter of women’s access to “indisputable and fundamental rights” drove her conclusions that providing information to women seeking abortions did not even engage the freedom to manifest religion and belief, and that any limitation on the NZBORA rights would have been justified. And while she described the rights in international instruments as “fundamental”, she did not describe the NZBORA rights in the same way.

Her Honour’s use of the Canadian jurisprudence about the right to “life, liberty, and security of the person” was also important. While she used that discussion to support her conclusion that access to abortion is a matter of fundamental rights, that provision has no direct analogue in the NZBORA, which protects only the right not to be deprived of life and not “liberty” or “security of the person” in general.

Her Honour’s conclusion that there was no sufficient nexus between the NZHPA’s beliefs and their objection to abortion was also notable. Her scepticism about this link—she “imagine[d]” that not all Catholics would hold this view and supported this by a single reference to a well-known individual—effectively required NZHPA to show that every adherent of that faith shared that particular position. This is an almost impossible task for any religion on any issue. If other courts follow this approach, it will make it extremely difficult for religious believers ever to show that they are “manifesting” their faith, making them ineligible for NZBORA protection and undermining the plain meaning of the right to religious freedom.

New Zealand Health Professionals Alliance v Attorney-General [2021] NZHC 2510