Conscientious Objection in Medicine

Right to lawful medical care undercut by conscientious objection proponents at the Council of Europe (October 2010).

In a move to seek support for the Council of Europe Resolution on Women’s access to lawful medical care: the problem of unregulated use of conscientious objection‘ the European Parliament Platform for Secularism in Politics dedicated its September 2010 meeting to this controversial issue.

Three weeks later, the Parliamentary Assembly of the Council of Europe adopted a completely watered-down version of the original resolution on the use of conscientious objection in medicine.

The resolution as adopted diverted far from its original proposal due to successful lobbying by the anti-choice movement. The diversion is clearly illustrated by the titles of the original and final texts, respectively ‘Women’s access to lawful medical care: the problem of unregulated use of conscientious objection‘ and ‘The Right to Conscientious Objection in Lawful Medical Care‘. What remains are two adopted but contradictory texts, the resolution and explanatory memorandum, characterized by the division between the pro- and anti-choice movements. The final resolution clearly is a setback for women’s reproductive health and their right to access to medical care worldwide.

The resolution

The original resolution was designed to offer – for the first time – comprehensive guidelines on how governments should balance between the right to reproductive healthcare for women the right to conscientious objection.

The practice of Conscientious Objection in medical care is currently unregulated in a large number of member states of the Council of Europe. As a result, women are often denied access to lawful reproductive health services by healthcare providers (doctors as well as pharmacists) on the basis of moral or religious conscientious objections. This obviously has a large and severe impact on a great number of women. The original resolution proposed governments to allow conscientious objection to be practiced by individuals only, not by public health facilities. Besides, as a part of the original resolution, public facilities must provide patients with information on alternative services and the medical options available in case of conscientious objection by the provider.

Arguments against the Resolution

Apart from disagreement from an ideological point of view with the content of the final resolution, there are also question marks on its legal stature and effectiveness. The following arguments against the resolution have been provided for by The Center for Reproductive Rights.[1]

Some of the arguments below are general in terms of the nature of the resolution and others address the content of the resolution. The list is not all inclusive, but should give  a general overview of the problems surrounding this resolution.

1. Generally:

a. A resolution is not a legally binding document and cannot be used to force countries to act according to the resolution, it is merely the expression of the sentiment of PACE.  In addition, the resolution at hand runs against international human rights law and emerging regional standards in this field (See explanatory memorandum).  Moreover a recommendation which follows a resolution would have called on Council of Europe bodies to assist member states to implement the resolution.  However, the recommendation was voted down (PACE votes on resolutions and recommendations separately). Hence, there is no recommendation to the resolution, diluting the impact of the resolution even further.

b. The resolution is confusing and contradictory. For example, it notes that the practice of conscientious objection is adequately regulated (para 3), yet goes on to invite member states to develop regulations (para 4).  Another example is that it could allow doctors as well as any medical facility to refuse to provide emergency obstetric care to a woman in need of an abortion (para. 1), yet recognizes the need to ensure that patients receive emergency care (para. 4.3).            

c. The explanatory memorandum provides detailed information that supported the original resolution and recommendation.  Now the explanatory memorandum is part of the amended resolution (see footnote to resolution) but completely contradicts it.  For example, the memorandum and resolution have conflicting titles with different meanings.  The memorandum has the title of the original resolution, Women’s Access to Lawful Medical Care:  the problem of unregulated use of conscientious objection and the resolution, as passed, is titled -The Right to Conscientious Objection in Lawful Medical Care.

2. Paragraph 1 of the resolution contradicts universally recognized fundamental human rights and rule of law principles by:

a. Removing liability from any person or institution for their conduct.  This contradicts basic concepts of lawfulness and the rule of law in a democratic society that require that persons who have been harmed have a right to have access to review procedures before an independent body. In Tysiac vs. Poland, the European Court held that ‘Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.’ The Court found Poland in violation of the right to private life for failing to have in place a mechanism to resolve disputes between a patient and her doctor (Tysiąc v. Poland (2007), ECtHR, Appl. No. 5410/03, paras116, 118, 128-30).  (See also the separate section in this website on the law case of Alicja Tysiac v Poland.)

b. Implying that foetus’s interests stand above women’s right to life and health.  This completely contradicts human rights principles, as recognized by the European Court of Human Rights which noted that any rights of the ‘unborn’ (foetus) are limited by the ‘mother’s’ (pregnant woman’s) rights and interests. (Vo v France (2005) 40 EHRR 12 at para. 80.) See also PACE’s resolution 1607, Access to Safe and Legal Abortion in Europe (2008)

c. Recognizing that providers can refuse to treat women in emergency situations, which contradicts basic medical ethics, World Health Organization standards and laws in many countries.

d. Recognizing, by implication, institutional objection contravening European Convention on Human Rights case law which notes that the right to freedom of conscience (Article 9) is by its very nature an individual right and therefore it can’t be exercised by an institution. (Kontakt-information-Therapie and Hagen v Austria, admissibility decision,  11921/86; See also scholar and ethicist, B.M. Dickens, noting that institutions “have no eternal soul that they may claim an entitlement to protect.” (B.M. Dickens, “Reproductive Health Services and the Law and Ethics of Conscientious Objection, MedLaw 2001)

3. Noting that the practice is adequately regulated (para. 3) contradicts the content of the explanatory memorandum and the emerging international standards in this field. For instance, various UN Human Rights bodies, including the Convention on the elimination of all forms of discrimination against women (CEDAW) pointed out this problem :

a. CEDAW to Slovakia (July 2008): While noting the measures taken by the State party to facilitate women’s access to health care, including reproductive health, the Committee on the Elimination of Discrimination against Women is deeply concerned about the insufficient regulation of the exercise of conscientious objection by health professionals with regard to sexual and reproductive health (….)The Committee recommends that the State party adequately regulate the invocation of conscientious objection by health professionals so as to ensure that women’s access to health and reproductive health is not limited. The Committee calls the attention of the State party to its general recommendation No. 24, which states that it is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women. It recommends that, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers. (paras. 42-43)

b. In a number of European countries, including Italy, Poland, Hungary, and Croatia, there are laws requiring doctors to inform patients of any conscientious objection to a procedure and refer the patients to another provider, but there is no oversight mechanism. For example, the Center for Reproductive Rights is currently working closely together with the Polish Federation for Women and Family Planning and the Warsaw University Law Clinic on a lawsuit against Poland in the European Court of Human Rights. The case concerns the death of a woman who was refused treatment for colon disease because doctors feared it would harm the foetus. Z was two months pregnant when she was diagnosed with the painful colon disease which was aggravated by her pregnancy. When she sought medical care in her Polish hometown and other cities, however, doctor after doctor refused to treat her illness because she was pregnant. They repeatedly expressed concern about the foetus, but none of them formally raised a moral or religious objection so they did not have to refer Z to a doctor that would treat her. Z’s symptoms grew worse until she miscarried and eventually, died. The lawsuit aims to ensure that Poland maintains enough healthcare workers who are willing to provide all legal health services and that patients get timely referrals. The suit also asks the court to prohibit hospitals and other institutions from invoking conscientious objection or using it to deny patients information or emergency care. (Z v Poland, Application no. 46123/08).

Background information to the use of conscientious objection in medicine.

As noted before, how and whether conscientious objection in medicine is regulated differs in the various Council of Europe member states. Case law can be used to give some insight to the issue.

1. In 1999 the French case Pichon and Sajous vs. France went all the way to the European Court of Human Right. Ultimately the court ruled against a pharmacist who refused to sell contraceptives. The court stated that in case “the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products.”

2. The German Federal Administrative Court has ruled that public hospitals should provide abortion services, and in case of conscientious objection, provide easily accessible alternatives. (See the explanatory memorandum by the rapporteur Ms. Cafferty, para.27). 

The European Convention on Human Rights made a clear distinction between the right to conscientious objection and to what extend this right can be exercised taking into account the rights of others. As Article 9(1) states, “Everyone has the right to freedom of thought, conscience and religion….” Article 14 continues with “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as…religion, political or other opinion….” Article 9(2) qualifies these previous articles by stating that “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Concerning healthcare, conscientious objection is constricted by those articles that protect the right to life and the right to privacy, including Article 2(1) and 8(1).

Other international treaties that are of relevance to the subject of conscientious objection in medical care include the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In these treaties, one can also find an outline to the balance between the right to conscientious and religious freedom, and the right to lawful medical care of the highest attainable standard.

More information

- The original report by Ms. Cafferty

- The opinion on behalf of the Committee on Equal Opportunities for Women and Men by Ms Circene

- The final resolution as adopted

- Center for Reproductive Rights

- An example of a pro-life organization, please see CARE. CARE is a well-established mainstream Christian charity providing resources and helping to bring Christian insight and experience to matters of public policy and practical caring initiatives. CARE is represented in the UK Parliaments and Assemblies, at the EU in Brussels and the UN in Geneva and New York.

- Catholics for Choice, In Good Conscience: Conscience Clauses and Reproductive Rights in Europe – Who Decides?, 2010, Washington, USA, available at http://www.catholicsforchoice.org/documents/InGoodConscience–Europe.pdf

- Savulescu, J., Conscientious objection in Medicine, BMJ, Volume 332, 4 February 2006, available at http://www.bmj.com/content/332/7536/294.extract?related-urls=yes&legid=bmj;332/7536/294

 Please also see the voting analysis on the report “Women’s Access to Lawful Medical Care” prepared by the European Parliamentary Forum.

Please also see the position of the European Feminist Initiative IFE-EFI regarding the resolution as adopted by the Council of Europe.