Ethics and the limits of a Bill of Rights

This is the problem with the State attempting to legislate rights and values. Inevitably, different values will conflict. The value that promotes abortion as an ethical good is ultimately in conflict with the broadly held (if still in the minority) value that considers life as having significant, intrinsic value from its conception.

When the State supports one “right” it faces the complication of (sometimes many) competing “rights”. Indeed, this is a well known weakness in the “rights” approach to ethics in general. Rights proliferate, adding imperative to imperative, all the while giving no guidance to the resolution of competing values and interests.

When the State codifies rights, we are left with the law as our tool for resolving these often extremely complex and difficult intersections. The law is too blunt an instrument. The codification of rights removes ethical discourse from professional communities and the public in general. In the case of medical ethics, this takes the determination of the right course in a given situation away from both patient and doctor, away from family and community, away from the hospital or clinic, and quarantines the difficult ethics in parliaments and courts. This is clearly not where these discussions are best held and the Act demonstrates this well.

But if I were relying on a charter or bill of rights to protect my freedoms, I wouldn’t be so confident. Either it would be impotent to protect the rights it is supposed to (such as the Victorian Charter, which despite its section on freedom of conscience did nothing to stop Clause 8 of the Act from being passed), or it would have power, but would only protect the rights the bill itself sees as correct.

If there is significant disagreement within the community over the application of one of the rights, at the expense of another, the debate will not go to democratically elected parliamentarians who can be voted out next election, but to undemocratically appointed judges. There is the potential here for judges to push their own agenda.

Ultimately, despite the fact that I am saddened by the Victorian Parliament’s decision in passing the Act, I would still rather trust in a sovereign parliament, where I can be actively involved in the democratic process in trying to remove the Clause, than in a charter of rights. I hope the Victorian Parliament will amend the Act. I hope the thousands of people who protested, the many submissions Parliament received, and the common sense of many Victorian Parliamentarians will lead to this clause being amended because of the way that it ultimately decreases freedoms and rights.

I do not have any faith that the Victorian Charter of Rights and Responsibilities will protect conscientious objection now that the Act is in effect any more than it prevented its creation in the first place. Nor do I believe that similar rights legislation on a national level would protect my freedom to abstain from uses of medicine that I find morally indefensible. Despite its best intentions, a bill of rights is mere symbolism at best, and a danger to the freedom it so boldly promises at worst.