ECLJ: PACE Resolution on Restricting Conscientious Objection Endangers Freedom of Conscience of Medical Practitioners

Article Completion

(Strasbourg, France) -- On the 7th October, the Parliamentary Assemble of the Council of Europe (PACE) will discuss and vote over a problematic issue resulting from the draft Resolution (doc 12347 20 July 2010) on “Women’s Access to Lawful Medical Care: The Problem of Unregulated Use of Conscientious Objection” prepared by Ms. Christine McCafferty.

The European Centre for Law and Justice (ECLJ), at the request of Members of the Parliamentary Assembly, has prepared an extensive legal memorandum examining the main provisions of the draft resolution under the requirements of European and International law, and within the case law of the European Court of Human Rights. The ECLJ memorandum can be found here; it includes the full text of the McCafferty Report.

The ECLJ must warn the members of PACE that several recommendations of the resolution are direct and serious violations of the freedom of conscience of medical practitioners, as guaranteed by European and International law.

Among its more unacceptable provisions, the draft resolution of the PACE report asks the European Member States:

to “oblige the healthcare provider to provide the desired treatment to which the patient is legally entitled [i.e. abortion] despite his or her conscientious objection”,
to oblige the healthcare provider to take part indirectly, in all circumstances, in abortion and other critical medical practices despite their conscientious objection,
to oblige the healthcare provider to prove “that their objection is grounded in their conscience or religious beliefs and that the refusal is done in good faith”,
to deprive “public/ state institutions such as public hospitals and clinics as a whole”, from the “guarantee of the right to conscientious objection”,
to create a “registry of conscientious objectors”,
to create “an effective complaint mechanism” against the conscientious objectors.

Based also on extensive research of the laws protecting conscience for health care professionals in the 47 Council of Europe member States and the 50 States of the United States of America (also made available in the memorandum), the ECLJ memorandum recalls and describes the main aspects of the right to conscientious objection of medical practitioners.

It appears clear, from European and International law as well as from State laws of western countries, that:

The right to conscientious objection is guaranteed in European and International law
The right to conscientious objection is guaranteed by international professional ethical regulations
The right to conscientious objection is guaranteed and properly regulated in almost all democratic societies
The right to conscientious objection always includes immunity from liability
Conscientious objection applies to individuals and institutions
The right to conscientious objection includes immunity from discrimination
The right to conscientious objection excludes any duty to perform the “procedure” even if referral is not possible.
The right to conscientious objection applies to both direct and indirect participation
The right to conscientious objection cannot be “balanced” with non-existing rights
The right to conscientious objection is guaranteed even in absence of specific national law
The right to conscientious objection is a symbol of freedom against totalitarian States

The memorandum also underscores the fact that the Council of Europe and the Parliamentary Assembly have continuously promoted the right to conscientious objection.

For example, in 2001, the Council of Europe voted that: “The right of conscientious objection is a fundamental aspect of the right to freedom of thought, conscience and religion enshrined in the Universal Declaration of Human Rights and the European Convention on Human Rights.” PACE Recommendation 1518 (2001).

It is clear that the main objective of Ms McCafferty’s text is not only practical but also deeply symbolic. As Grégor Puppinck states, “with this text, abortion becomes the rule, conscience the exception, whereas, even after its decriminalization, abortion has always been considered as an exception, never a right or a good per se.”

The ECLJ warns the members of the PACE that this Report gravely endangers the freedom of conscience. Even for those who consider abortion as legitimate, the small facilitation of the access to “reproductive health services” that this Report seeks apparently to provide cannot justify hurting, damaging and undermining the very core principle of “freedom of conscience”.

The European Centre for Law & Justice (“ECLJ”) is an international Non-Governmental Organization dedicated to protecting human rights and religious freedom in Europe. The ECLJ has served in numerous cases before the European Court of Human Rights. Additionally, the ECLJ holds special Consultative Status before the United Nations.