This Supplementary Order Paper amends clause 7 of the Abortion Legislation Bill by amending new section 19 and replacing new section 20, relating to conscientious objection and provisions related to employment relations. The wording for this amendment has been taken from section 8 of the End of Life Choice Act 2019, which addresses a comparable matter of conscientious objection.

The Abortion Legislation Bill maintains the current standard that a person with “a conscientious objection to providing, or to assisting with providing, [an abortion]” is not required to undertake or assist with the procedure and must tell the woman of their objection “at the earliest opportunity”. However, the Bill goes further than the current law in its requirement that a conscientious objector must “tell [the woman] how to access the list of abortion service providers” maintained by the Ministry of Health.

In 2010, the High Court ruled against the Medical Council when similar provisions were incorporated in a Council’s draft statement on how doctors who hold a conscientious objection to abortion must respond to a patient requesting an abortion. The judge ruled that when a woman requests abortion, the proper course for a doctor who has a conscientious objection is to decline to embark upon the process, and inform the woman she can obtain the service from another health practitioner or from a family planning clinic. Justice MacKenzie claimed, “this must be seen as a maximum obligation [of the Health Practitioners Competence Assurance Act 2003], and not one which may be supplemented by the imposition of professional standards.” Equally, Parliament must take into account this ruling, and maintain a judicious standard on medical practitioners on issues of conscience.

The Bill also amends the current law to allow an employer that provides any of the health services specified in new section 19(1) to discriminate on the basis of conscientious objection, contrary to the right not to be discriminated against on the basis of religious belief, ethical belief, or political opinion. The Human Rights Act 1993 prohibits discrimination in the employment application process. The Bill provides that it will be a legitimate part of the employment process for an employer that provides any of the health services specified in new section 19(1) to ask a job applicant questions about whether they conscientiously object to providing an abortion.

Further, the Bill provides that if such an employer considers that an employee’s (or job applicant’s) conscientious objection would “unreasonably disrupt the employer’s activities”, the employer can take action, including refusing to hire an applicant, offering inferior terms of employment, or terminating the employment of a medical practitioner. Troublingly, the Bill does not restrict this limitation to the health practitioner. It provides that an employee or job applicant “who is qualified for work in connection with the provision of those services” may be lawfully discriminated against. Depending on the court’s interpretation of “qualified”, this arguably extends the reach of this section to include all staff connected to the provision of the abortion service.

This Supplementary Order Paper seeks to maintain the judicious standard that is currently in place, reiterating the recently accepted stance concerning conscientious objection seen in the End of Life Choice Act 2019.