(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 adraft 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:
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”. 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.
 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.