July 02, 2010
(Strasbourg, France) - The European Centre for Law and Justice (ECLJ) is
expressing concern about a Draft Report that jeopardizes the right of conscience
and religious freedom for healthcare providers.
A Council of Europe draft recommendation asks the European Member States to
“oblige the healthcare provider to provide the desired treatment to which the
patient is legally entitled despite his or her conscientious objection” and to
create “an effective complaint mechanism” against the objecting healthcare
providers.
During the June 2010 session of the Parliamentary Assembly of the Council of
Europe (PACE), the Social, Health and Family Affairs Committee approved a
draft Report and Resolution aimed at strongly restricting the right of
medical practitioners to conscientiously object. This Report and Resolution was
drafted by the British Socialist ex-MP, Ms. Christine McCafferty.
The Report, entitled “Women’s access to lawful medical care: the problem of
unregulated use of conscientious objection” (available
here), is tabled to be
discussed and voted on during the next plenary session of the PACE, between
October 4th and 8th, 2010, in Strasbourg.
The report focuses “especially [o]n the field of reproductive health care” of
women, i.e., mainly on abortion, but it also concerns some other practices such
as assisted reproduction and sterilization. The report also mentions
“pain-relief by life-shortening means for terminally ill patients,” i.e., active
euthanasia.
It is a very cleverly and strategically constructed report, because it
targets equally the principles and the practice. Indeed, this report stands on
the biased assertion that abortion is a form of “healthcare” and a “right”; its
morality being deduced and imposed on individual consciences from its legality.
Therefore, it implies and promotes abortion as a “fundamental right” and a
regular form of healthcare that should be regulated as any medical service.
The resolution invites European States to restrain the exercise of
conscientious objection in order to facilitate access to abortion and other
practices. As said by this draft report, the Parliamentary Assembly would be
“deeply concerned” about the “increasing and largely unregulated occurrence” of
conscientious objection arising in the “field of health care when healthcare
providers refuse to provide certain health services based on religious, moral or
philosophical objections.”
In other words, the persistent objection of medical practitioners to abortion
would be a cause of deep concern for the Parliamentary Assembly, because it
“poses an obstacle to women’s access to lawful medical care in many Council of
Europe member states;” in explicit words, it limits access to the “termination
of pregnancy” as the report says.
As an answer to its concern, the Social Committee of the PACE invites the
Member States “to balance the right of conscientious objection of an individual
not to perform a certain medical procedure with the responsibility of the
profession and the right of each patient to access lawful medical care in a
timely manner.”
The line of attack proposed by the Social Committee to “balance” those
“rights” is to “oblige the healthcare provider to provide the desired treatment
to which the patient is legally entitled despite his or her conscientious
objection.” In order to implement this obligation, the text asks the Member
States to “provide oversight and monitoring (…) of the practice of conscientious
objection,” and to create “an effective complaint mechanism” “that can address
abuses of the right to conscientious objection and provide women with an
effective and timely remedy.” (§59)
In addition, the explanatory memorandum provides that the “[o]bjecting
healthcare providers have the burden of proving that their objection is grounded
in their conscience or religious beliefs and that the refusal is done in good
faith.” (§19).
Clearly, freedom of conscience of the healthcare provider is in jeopardy.
More precisely, according to Ms. McCafferty’s report, only the “individual
healthcare providers directly involved in the performance of the procedure in
question” would, in some circumstances, be allowed to object. In other words,
all the medical and paramedical employees such as nurses and assistants would
not be allowed at all, in any circumstances, to object (§ 39). Only the Medical
staff or doctor personally required to perform (by their own hands) the
abortion, may, in some restricted circumstances, be permitted to object. The
nurses and other staff helping him would not.
In addition, the healthcare provider would be obliged to participate
indirectly, or to mediate, the performance “of the procedure in question.” As
clearly stated by the Council of Europe text, in any circumstances, the
“healthcare providers” would still have to “provide information” on the
procedure in question, “refer patients to another healthcare provider” who would
perform the “procedure”, and would have to “ensure that the patient receives
appropriate treatment from the healthcare provider to whom he or she has been
referred.” In other words, the healthcare providers would have the duty to
participate indirectly in the performance of the abortion and other
objectionable practices, and would be morally and professionally accountable for
their actions.
In addition, the text Assembly invites member states to deprive “public/
state institutions such as public hospitals and clinics as a whole,” from the
“guarantee [of] the right to conscientious objection.”
Generally, the expression “coercive abortion” is used to describe forced
abortion against the will of the pregnant women. It may also be used, however,
when, as recommended in this text, it is the healthcare providers that are
forced to participate in the performance of the abortion against their will.
Conscientious objection is a sensitive issue not only because it makes access
to abortion more difficult, but also, and mainly, because of its moral and legal
implications. One of the arguments used by this text to push member States to
modify their regulation is to pretend that “the practice of conscientious
objection is inadequately regulated or largely unregulated” in “the majority of
Council of Europe member states.” In fact, one of the aims of McCafferty’s text
is to transform the “right” of conscientious objection as set forth through
“conscience clauses” into an “exception” to the general rule, obliging
healthcare providers to provide the “health service” requested by the
individual. The goal is not only practical, but also deeply symbolic: abortion
becomes the rule, conscience the exception, whereas, since Hippocrates, and even
after its decriminalization, abortion has always been recognized as a moral
exception, never a right or a good per se.
Conscientious objection is a symbol of freedom; it is also a testimony of the
supremacy of the straight conscience over unjust positive laws. The fact that
almost all laws related to abortion and sterilization contain a “conscience
clause” is an explicit acknowledgment of the immorality of those practices, and
of the absence of an individual right to have access to such practices.
Transforming the “fundamental right” of moral objection into a mere “exception,”
would, to some extent, remove the acknowledgment of the immorality of the
concerned practices.
This Draft Report is a matter of substantial organizational concern to the
ECLJ because of the threat to the right of conscience and religious freedom
belonging to healthcare providers. As an answer to this report and at the
request and for the purpose of Members of the Parliamentary Assembly of the
Council of Europe, the ECLJ is elaborating a comprehensive memorandum outlining
its specific concerns with supporting legal arguments. In its memorandum, the
ECLJ explains that physicians cannot be coerced into participating in such an
act. Unlike abortion, the fundamental rights of religious belief and practice
are protected by international law. In essence, the right to object to
participation in an abortion is the religious, conscientious, or moral “choice”
of the physician. Accordingly, as the European Court of Human Rights has
explained, the balancing required by the ECHR is not applicable where a right
protected by the Convention conflicts with rights not so protected; i.e. the
fundamental right to conscientious objection prevails on the non-existing ‘right
to abortion”.
The ECLJ memorandum, that will be published in the following days, recall in
particular that:
- The right of conscience is well grounded in medical law and ethics.
- The Right
of Conscientious Objection among Healthcare Providers Is Fully and Competently
Addressed by the Member States
- Abortion is not a right protected by European or
International Law
- The Right of Conscientious Objection Is a Fundamental Right
Grounded on Natural Law
- Conscientious Objection Is a Fundamental Right Protected
by European and International Law
- Proscribing Conscientious Objection is
Oxymoronic
Below are highlights of the ECLJ Memorandum.
1: The right of conscience is well grounded in medical law and ethics
The right of conscience is well grounded in medical law and ethics. The
International Code of Medical Ethics of the World Medical Association, for
example adopted in 1949, states: “A doctor must always bear in mind the
obligation of preserving human life from conception. Therapeutic abortion may
only be performed if the conscience of the doctors and the national laws permit”[1].
Additionally, the American Medical Association fully supports the right of
conscience for healthcare providers.
2: The Right of Conscientious Objection Among Healthcare Providers Is Fully
and Competently Addressed by the Member States
All 47 European Union Member States have laws on their books governing the
exercise of conscientious objections among healthcare providers. As such, there
is absolutely no pressing need for the Council of Europe to push additional
regulations into the mix. Forcing such a policy on the Member States would not
only represent a complete shift in policy from the past 40 years, but would also
create additional and unnecessary problems by imposing the view of the
Rapporteur on unwilling and sovereign Member States. Additionally, contrary to
the 2010 Draft Report’s conclusions, a majority of the Member States are
regulated by professional ethics rules and guidelines through membership in both
the International Federation of Gynecology and Obstetrics and the World Health
Organization. The guidelines provided by these organizations address
directly the right of conscientious objection of healthcare providers and
specify remedies for balancing patient needs when necessary.
3: Abortion is not a right protected by European or International Law
Abortion is not a “right” and is not, and must not, be considered an element
of basic health care. In Tysiac v. Poland, the ECHR, while finding Poland’s
procedures for obtaining a medically necessary abortion violated Article 8 of
the Convention, did not interfere in the State’s right to limit abortion rights
to situations in which the life or health of the mother was at risk. Thus, at
least implicitly, the Court has recognized the ability of Member States to
strictly regulate abortion, adhering to the policy of State sovereignty in
certain areas of law. Therefore, where abortion—particularly elective
abortion—is not recognized as a fundamental right under the Convention, Member
States may not “balance” access to elective abortions against the fundamental
right to conscientiously object to performing abortions.
Not only is abortion not a “right” in the European community, at least four
Member States, Lichtenstein, Malta, Monaco, and San Marino, go so far as to
declare abortion a criminal act in all circumstances, while allowing the
principal of necessity as a defense that can be invoked in order to save the
life of the mother. Additionally, many of the Member States that permit abortion
only do so when it is necessary to save the life of the mother or for other
similarly weighty health concerns, demonstrating that abortion is most
definitely not seen in the Member States as a common good. One would be hard
pressed to discern how abortion could be considered a right under European or
International law when four member states outlaw the procedure completely and
many others only permit it to save the life of the mother.
4: The Right of Conscientious Objection Is Grounded in Philosophy, Natural
Law
The right of conscientious objection finds strong support in philosophy and
the Natural Law. It both precedes and stands above positive law, and thus, by
legislating the right of conscientious objection, the positive law merely
recognized that which already existed---an inherent moral duty, a supra-legal
right, to follow one’s internal convictions. While some claim that conscientious
objection will be carried out arbitrarily and undermine the rule of law, this
claim is false as each objection is rooted not only in deep, personal
conviction, but more importantly, in the objective truth that certain
fundamental human rights (the right to conscientiously object) trump all
positive law. Conscientious objection is one such fundamental right, and any
attempt to “regulate” the right of conscientious objection through positive law
is unjust and must not be permitted. And as Thomas Aquinas reminded us, an
unjust law is no law and must not be followed.
5: Conscientious Objection Is a Fundamental Right Protected by European and
International Law
The Council of Europe was built in part on the principles of subsidiarity and
respect for national sovereignty. Extensive regulation of the right of
conscience of the healthcare profession throughout the Council of Europe
violates both of these principles. Moreover, according to the ECHR, issues
pertaining to moral questions, particularly the right to life and the
determination of when life begins, fall outside the jurisdiction of the Council
of Europe. The value judgments of sovereign States should be protected, and
thus, an overarching governmental organization should refrain from burdening
itself with choosing what is morally best for sovereign States.
Healthcare providers, and specifically physicians, stand on firm ground in
adhering to their consciences and religious beliefs when declining to
participate in the abortion of a child. Unlike abortion, the fundamental rights
of religious belief and practice are protected under Articles 9 and 14, among
others, of the European Convention on Human Rights (ECHR). Additionally, the
right of conscience finds adequate protection under Article 18 of the
International Convention on Civil and Political Rights (ICCPR) (of which a large
majority of COE Member States are a party). Furthermore, the right to
conscientious objection is specifically recognized in the Charter of Fundamental
Rights of the European Union, which provides for the “Freedom of thought,
conscience, and religion” under Article 10. Specifically, section 2 of Article
10 states: “The right to conscientious objection is recognized, in accordance
with the national laws governing the exercise of this right”. The right of
conscientious objection is explicitly mentioned in accordance with the deference
due each member state, whereas the right to an abortion is mentioned nowhere.
6: Proscribing Conscientious Objection Is Oxymoronic
The idea of regulating conscientious objection is a paradox that exhibits no
logical coherency. When a healthcare provider acts according to his conscience
by refusing to perform a certain “medical” procedure (e.g., an abortion), he is
objecting to an existing positive law. The State has communicated, by means of a
law, that he must do one thing, but he refuses because his conscience will not
permit him to act in accordance with that law. Attempting to proscribe
healthcare providers from conscientiously objecting will thus do absolutely
nothing except provide an additional law to which the healthcare provider must
conscientiously object and create tension and problems within the medical field.
The Member States that have explicitly provided a right of conscientious
objection have done so not only to protect the fundamental rights of healthcare
providers, but to also avoid the controversy that would inevitably result if
regulations were imposed.
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[1] It is worth noting that the Classical Hippocratic Oath forbade a doctor
from providing an abortive remedy.
The European Centre for Law and Justice (ECLJ) is an international law firm
focusing on the protection of human rights and religious freedom in Europe and
worldwide. The ECLJ is affiliated with the American Center for Law and
Justice (ACLJ), which focuses on protecting religious freedom in the United
States. Attorneys for the ECLJ have served as counsel in numerous cases before
the European Court of Human Rights. Additionally, the ECLJ has special
Consultative Status with ECOSOC of the United Nations, and is accredited to the
European Parliament.
