A letter to the Queensland Government regarding the Termination of Pregnancy Bill 2018

The Queensland Government is considering a new bill to decriminalise abortion. I wrote a pretty lengthy piece for church on how any legislation in this area is complicated because it touches on how we, as a society, define personhood, and how we choose who gets ‘human rights’ before we then stack the rights of the mother up against the rights of the child. Abortion is a pretty complicated issue and it’s multi-factorial — there’s much more going on than can be solved simply with legal solutions, and the church’s public stance on sexual ethics (and thus unwanted pregnancies) has left us as complicit with abortion as those who allow it. We’re also bad at imagining solutions beyond legislation — but that doesn’t mean we shouldn’t speak about legislation when the moment arises. Two of my brilliant colleagues, Andrea and Vicki wrote pieces exploring these issues.

I’ve been asked why abortion (and the sanctity of life) is a different issue to marriage equality (and the sanctity of marriage), which is a great question that I’d love to unpack. And my basic answer is that it both is and isn’t different; my approach to speaking into the political sphere as a Christian is consistently to articulate a Christian perspective and recognise that we are not a Christian nation and that our views have no special place in the legislative approach chosen by our government — who must balance all the views at the shared table. A Christian perspective is one built from the idea that, for the Christian (and in reality), Jesus is Lord, and that our loyalty, within a democracy (or anywhere) is to him first. Our reason for speaking for a Christian view is that we believe it is better for all people because God is the loving creator. Our challenge is that other views of creation (idolatry) will need to be accommodated by the laws in a secular, pluralist, democracy; and such a democracy, that holds competing views together in tension, will always by default lean towards one view and attempt to accommodate, or make space for, as many others as it can.

Our case for or against any change is not served by spreading misinformation; and having read the Bill and the report from the Queensland Law Reform Commission that produced it, I’m appalled by some of the misinformation being circulated by the pro-life side. I’ve seen claims that the legislation allows sex selection, the death of children born alive during the process, and partial birth abortion. The last claim is the most obvious form of misinformation; the Bill does not mention partial birth abortion because the report suggests a partial birth abortion is neither an abortion, nor murder, but fits within its own definitional category in the Criminal Code).

The report says:

“Provisions like section 313(1) were intended to fill the gap between the offences of unlawful termination (which apply to a fetus) and unlawful homicide (which applies to a child born alive).”

The relevant section of the Criminal Code says:

“Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, the person would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.”

The report acknowledges that there’s an ambiguity here when it comes to abortion, so the Bill recommends an amendment to s313, to make it clear that terminations are not the same thing as ‘preventing a child being born alive’. It doesn’t specifically say anything about the surgical procedures involved that either allow or disallow partial birth abortions. And while, if the unborn child is a person from conception, there’s no moral difference when it comes to the methods of procuring an abortion anyway, it is important that when discussing a topic that is rightly one where the emotions are at play, and where the outcome matters, that we get our facts straight. There’s a massive grey area on the question of partial birth termination, but that’s not the same as suggesting it’s a built-in feature of the Bill. One problem with the Bill is that there are just two many grey areas that mean different emotional arguments from all sorts of scenarios become possible arguments, but this doesn’t make them good arguments any more than the grey areas make good law.

I’d recommend reading the QLRC report (where the Presbyterian Church of Queensland submission even gets quoted). It’s 300+ pages long, but if you’re going to enter a conversation it’s worth holding an informed position. Especially if the issue matters.

Here’s a letter where I attempt to hold these things in balance. You might like to write your own.

To the Hon Yvette D’ath MP, Attorney-General and Minister for Justice and the Hon Jackie Trad MP, Deputy Premier and Member for South Brisbane,

Re: Termination of Pregnancy Bill 2018

I am a Presbyterian Minister, leading a congregation in Ms Trad’s electorate of South Brisbane. I’ve long been an admirer of her engagement in the community of South Brisbane and particularly her concerns for the vulnerable members of her electorate — our neighbours.

The recent proposed changes to laws regarding termination of pregnancies in Queensland are causing some concern within the Christian community, and not a small amount of misinformation is being circulated by pro-life groups. I’ve been urged to oppose changes to the legislation because the new bill allows abortions on the basis of ‘sex selection’, and that it will allow partial birth abortions or even post-birth abortions where a fetus survives the process and is left to die, unwanted. This is disturbing to many within the community (beyond the boundaries of religious groups). As I read the proposed Bill from the Law Reform Commission I could find no evidence to support such emotional claims, but also nothing to refute them.

As a leader within the Christian community it seems that the best pathway to a civil conversation on what is not a small or simple issue requires clear information, especially in response to misinformation — especially when the moral weight of such misinformation must surely lead many decent people to oppose the bill. I’m writing to ask that in the course of the public conversation you devote time and energy to both hearing from those worried by these changes, and to correcting the record with as much clarity and charity as possible.

It seems to me that the discussion around the legislation of abortion is not helped by references to marginal cases (from either side), but also that such marginal cases are inevitably part of the discussion. I watched a speech from Ms Trad on the ABC’s Facebook page where she said:

“When the other side say that what we are campaigning for is the right to carry an unborn baby for 38 weeks and then go to a doctor and say we want an abortion is bullshit. It is 100% bullshit.”

I’m concerned that while Ms Trad identifies a gross misrepresentation of the views of those seeking legislative change, any approach to a complex ethical issue built on statements about ‘the other side’ are likely to create an adversarial basis for discussions. One can grant that the legislative changes are seeking to aid women in enormously complicated medical and emotional circumstances without accepting the premise that generalised laws should be made for marginal cases. The proposed legislation is much broader than required those situations as they arise. I am concerned that the proposed limits in the legislation for terminations beyond 22 weeks are fairly vague, where they could be much more specific.

That’s not to say that those of us in religious communities within the community are only concerned about terminations after 22 weeks, which involve the more emotionally disturbing surgical termination (and as a result open up concerns about partial birth abortions, and infant survival beyond the process). The report from the QLRC, which produced the draft bill, provides a relatively black and white position on what it acknowledges is a complicated and contested question.  In deciding whether to recommend abortion ‘on demand’ or the ‘combined approach’ the bill adopts, the QLRC acknowledged various objections to abortion on demand from religious groups (including the Presbyterian Church of Queensland), and those supporting a ‘combined approach,’ which typically argued from the rights of the mother. The report cited a submission from the Australian Lawyers For Human Rights which, in arguing for no limit, made the point that isolating any moment in the gestation period as a point at which the fetus gained human rights and legislating from there is an arbitrary decision:

“Specifying criteria for termination according to different gestation periods is arbitrary, and fails to consider the individual circumstances of each case.”

I would agree with the arbitrary nature of specifying criteria, but suggest that a rush to individualise the considerations around particular cases ignores general principles that our legislative framework must uphold (and indeed the sort of ‘general principles’ required to establish generalities like universal human rights. I would humbly suggest that it is precisely because making such a distinction is arbitrary that we might consider drawing such a point earlier than viability, rather than later.  The report, in Appendix D, also makes the claim:

“Determining the moral status of the fetus or unborn child is contentious. It cannot be resolved by medical facts.”

If extreme cases make for bad law, then I wonder if another axiom might be thrown into the mix — legislation that doesn’t have settled ‘first principles’ also makes bad law. While I recognise that the rights of the woman are an important consideration, laws regarding termination (and that such laws have not been established in Queensland prior to 2018) have always been contentious because deciding when a human life becomes a ‘person’ the law should protect is not easy. The contest of rights between mother and child cannot simply be solved by assertion, and the report itself acknowledges that religious and philosophical reasoning must be brought to bear on this question that medical science alone cannot answer; and so I was concerned to hear Ms Trad dismiss religious objections being raised to the Bill when she said:

“That is the shameful act — to elevate these women’s lives and these women’s circumstances and to use it as a political platform for their absolutely fringe religious perspectives here is outrageous.”

These are not so much fringe religious perspectives as perspectives on the nature of human life that have shaped the approach to human rights, including the rights of the mother, that we enjoy in the western world. For good, and for ill, our approach to personhood in the western world has been profoundly shaped by the Christian teaching that all people are made in the image of God, and thus have inherent dignity (traditionally from conception), and the command from Jesus to “love your neighbour as you love yourself.” It is this axiom that led the early church to, in practice, oppose the abortion-on-demand culture of Rome, a first century Christian document, The Didache, contains specific teachings about how the church was practice this command, which included, specifically, a command not to have abortions, and as the Christian view of life became the dominant one in Rome, and then the west, this view of the unborn child as a neighbour became enshrined in practice, philosophy, and law. From the earliest practices of the church, through to the influence of these practices on our laws (and the establishment of rights for women and children), the church has been seeking to apply the teaching of Jesus to a belief that life begins at conception. These are not ‘fringe religious perspectives’ but a particular position on an issue that Queensland Law Reform Commission acknowledges is complicated.

Because Christians believe the unborn child is a person from conception there is a heightened amount of passion and emotion brought to the conversation about legislation; for us the images brought to our imagination when discussing surgical terminations after 22 weeks are profoundly the same as the idea of the ‘surgical termination’ of a newborn, whose right to life the state rightly protects. While Ms Trad rightly makes the case that nobody takes these decisions lightly, and they almost always tragedy, the legislation does not provide adequately explicit limits on the sort of cases where surgical terminations might be performed; and the distinction between a surgical termination performed at some point prior to 22 weeks and afterwards is, as the report acknowledges, totally arbitrary. How can those who hold this view of the humanity and personhood of the fetus possibly stand by and still believe they are upholding the command of Jesus to love our neighbours? For these weighty questions or scenarios to be dismissed as ‘bullshit’ or ‘fringe’ does not allow the sort of civil discussion required for the formation of good law based on the sort of consideration our pluralist, secular, democracy requires.

The influence that inherently Christian views should have on legislation in a modern secular state is, of course, open to debate. I’m not writing with the expectation that the particular views of my religious tradition be enshrined in the law, but rather to request that they not be summarily dismissed as ‘bullshit’ or ‘fringe religious perspectives’ in weighing up questions of when a human is viewed as a person (the criteria we use here, which are philosophical, will have profound ‘first principles’ implications for all sorts of lawmaking). I would urge you both, and the Labor Party, to reconsider the arbitrariness of drawing a line on where a fetus is a person, and as a result, draw the line to confer both personhood and human rights on the unborn child much earlier, and thus to weigh those rights carefully.

I’m also writing to suggest that the laws regarding conscientious objection and the necessary referral to other practitioners are not so straightforward. In my conversations with medical professionals within our Christian tradition I’ll be suggesting that part of ‘disclosing an objection’ is an opportunity to explain the basis for such an objection, to persuade our community that the best version of our society is one where Jesus’ command to ‘love your neighbour as you love yourself’ shapes all we do, that to simply refer a patient to termination by another where you believe the life of a person involved is to become a bystander in the killing of an unborn person. When Jesus affirms the command to ‘love your neighbour as you love yourself’, he tells the famous story of the Good Samaritan — the one who stepped in to a complex situation to help after two others (religious leaders) had chosen to be bystanders in the situation. If such a stance is not protected or envisaged by the current framing of the bill then it does not actually protect the conscience of the practitioner but impinges on it such that they are essentially forced to adopt the definition of personhood not-clearly-defined by the Bill.

I recognise that churches have a long way to go in making alternatives to termination plausible, and that our ‘pro-life’ stance often does not extend to the community based support we offer mothers in emotionally and socially vulnerable situations, such that we demonstrate a concern for the rights of the mother, and I also recognise that there are many medically and socially complex cases where decriminalisation of abortion and the provision of clear medical guidelines for practitioners is important, but I do not believe this Bill provides the clarity or limits required for it to make good law for those circumstances.

Ms Trad has been exceptional at loving our neighbourhood in many other spheres, recognising the inherent dignity of many people our society chooses to walk by, and I thank her for that. I would love to have a further conversation with Ms Trad to listen to her perspective, and to outline the objections of the religious members of her electorate and the wider community, trusting that such a dialogue would limit our capacity to see our neighbour as a despicable ‘other’ and that dialogues like this are the basis of producing better, and more inclusive, legislation. Christians are also called to pray for our leaders, and I write to assure you both of my prayers as you, and the government, weigh up the best way forward on this issue.

Sincerely,

Rev. Nathan Campbell

Campus Pastor — Creek Road Presbyterian Church, South Bank.