Legal Aspects of Conscience Clauses in Health Care Services

1. Legal Aspects of Conscience Clauses in Health Care Services Ph.D. Fellow, LLM Janne Rothmar Herrmann EACME New Pathways for European Bioethics Leuven 2006

2. What is a conscience clause? • A right not to be obliged to perform certain otherwise compulsory legal duties • Legislative provisions • Constitutional provisions • Concordats/treaties/conventions • What does a conscience clause cover?

3. Human Rights based • The question of conscience clauses in relation to health care services is a human rights based question. • Human rights are basic and fundamental ethical values which have been transformed into legal values and legal rights. • A catalogue of human rights has been adopted in various treaties under the United Nations. • In Europe the regional human rights instruments are those adopted by the Council of Europe – the European Convention on Human Rights being the most important instrument ratified by most European countries.

4. Plan for this presentation • Which human rights are at stake? • Balancing opposing human rights exemplified by • The Danish Abortion Act • Which related health care services are covered?

5. An implication of the right to freedom of thought, conscience and religion • European Convention on Human Rights • - Article 9 • 1. Everyone has the right to freedom of thought, conscience and religion... • - Article 14 • 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…

6. Conscience clauses in European medical legislation typically relate to: • Abortion • Family planning/contraception • Medically assisted fertilization • Euthanasia • Treatment without blood or bloodproducts

7. The right is not unlimited • ECHR Article 9 • 2. 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.

8. The right to health and reproductive choice • ICESCR Article 12 (1) • ”the right of everyone to the enjoyment of the highest attainable • standard of physical and mental health” • CEDAW Article 12 (1) • ”States Parties shall take all appropriate measures to eliminate • discrimination against women in the field of health care in order to • ensure, on a basis of equality of men and women, access to health care • services, including those related to family planning.” • ECHR Article 2 (1) and Article 8 (1) • ”Everyone’s right to life shall be protected by law.” • ”Everyone has the right to respect for his private and family • life…”

9. The Danish Abortion Act • Section 10 (2): • Doctors, nurses, midwifes, nursing aides and social and healthcare workers for whom it is against their ethical or religious beliefs to perform or assist in induced abortion can apply for and shall be granted exemption. The same applies for students in the named professions

10. Distinction • ECHR case-law (Paton v. UK): • The foetus does not have an absolute right to life as this would render any type of abortion impossible even when the woman’s life is at stake thus violating her right to life under Article 2 of the Convention. • Distinction: • Therapeutic purpose or non-therapeutic purpose? • Involves the basic human right to life and health

11. Implications of the right to reproductive choice and health • A doctor who invokes a conscientious objection must be imposed an obligation to refer the woman to another doctor • If abortion is legal the woman must be guaranteed effective access to receive an abortion – she must be provided with an effective remedy in case of refusal • (case pending before the ECHR, Tysiac v. Poland) • A doctor invoking a conscientious objection cannot be the only qualified doctor in remote or rural areas

12. Broadening the circle of rightholders • To provide equal rights • The broadening of the circle of rightholders implicitly broadens the term • ”assist in induced abortion” • Debatable which related health care services are covered by a conscience clause

13. Related health care services • Care • Counseling • Complications • Referral to another health professional • Information • Foetal diagnosis • Genetic counseling

14. Related health care services • Counseling • The right to health includes the right to seek, receive and impart information concerning health issues • The right to seek, receive and impart information is also the core of the right to freedom of expression • (Open Door and Dublin Well Woman v. Ireland)

15. Complications • The right to health covers qualified treatment necessary after an abortion. • Irrespective of the abortion being legal or illegal • Complications arising after a termination must be diagnosed and treated. This aspect is not covered by the conscience clause

16. Care • Social- and health workers that provide basic care are also covered by the conscience clause • ”assist in induced abortion”: care = assist? • Both therapeutic and non-therapeutic?

17. Slippery slope? • Expanding the circle of rightholders expands the meaning of the term ”assist” • What about other health professionals? • - Genetic counseling, foetal diagnosis • What about the hospital porter who has to take the woman to the operating room, the secretary who is scheduling the termination or the pharmacist dispensing the abortifacient?