A Matter of Conscience? Abortion Access and Conscientious Objection in the European Union
|Date:||20 May 2014|
Religious freedom is becoming an increasingly significant issue in the European Union. Last year saw the adoption of the EU Guidelines on Freedom of Religion or Belief, and governments such as the Netherlands, the UK, France and Germany are placing renewed emphasis on religious freedom in their foreign policy. In today’s post, Katie Casey explores some of the tensions around this increasing focus on religious freedom particularly in relation to the rights of women.
British lawyer Mark Hill observes that European Court of Human Rights judgments concerning religious freedom tend to follow a formula, which could be summarized as: “religious freedom is important, but…” The two-part structure of Article 9, guaranteeing freedom of religion in the Article 1 and allowing limitations on the manifestation of religion in Article 2, invites a kind of reasoning that positions religious freedom in opposition to other priorities. The division between protected belief in the forum internum, the private domain, and the forum externum, the public, identifies religion in the public sphere as potentially problematic. In particular, women’s rights are seen as threatened by the manifestation of religion. Debates around abortion add to questions about whether religious rights are compatible with women’s rights, a particularly pertinent question in European politics in light of discussions of Muslim women’s dress, which framed women as needing protection from religious gender oppression. In the case of conscientious objection for medical providers, religious freedom is positioned as a threat to women’s rights and health. The EU responds by proposing to privatize religious belief or limit its public expression, drawing boundaries between the public and private which risk oversimplifying the complex relationship between law, religion and reproductive rights.
There is no right to abortion as such in European human rights instruments. However, the European Parliament recommended in 2002 that all member states legalize abortion, and the European Court of Human Rights has recognized several key rights to be linked to access to abortion, particularly the rights to life, privacy, and freedom from degrading treatment. As a result, the European Parliament, as well as the Parliamentary Assembly of the Council of Europe, recommend limits on the right to conscientious objection as an important means of ensuring access to abortion.
Many key European cases about abortion access are not technically about religious rights at all. They deal more directly with confusing regulations, which cause doctors to refuse to perform procedures they think might be illegal. Despite this, religion and limits to abortion access are linked both by EU institutions and in public debate. For example, in the 2011 case RR v. Poland, Poland was found to have subjected a woman to degrading treatment, violating her Article 3 rights, after deliberate delays and misinformation by various medical professionals as she sought access to abortion. Though it was not their primary defense, Poland raised Article 9, claiming that the doctors’ delays could have stemmed from conscientious objection to abortion. The court rejected this argument, stating, “the word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief,” and that the Polish government was responsible for ensuring that freedom of conscience did not block patients’ access to legal treatments. In a 2005 opinion criticizing a treaty between the Slovak Republic and the Holy See, which adopted a broad definition of conscientious objection, the EU Network of Independent Experts on Fundamental Rights noted the high percentage of Catholics in the country as a potential barrier to access if conscientious objection was recognized. In Ireland, where the death of Savita Halappanavar sparked controversy about the confusing state of Ireland’s abortion law, the country’s Catholic identity was integral to debates about reform. Halappanavar suffered a miscarriage and was admitted to University Hospital Galway in October 2012, but her requests for abortion were denied despite the non-viability of the fetus. Halappanavar developed septicemia and died on 28 October 2012. Her husband claims that her request for an abortion was turned down because, according to the midwife, “This is a Catholic country,” though the decision to deny the abortion was made based on uncertainty about its legality under Irish law, as the fetus still had a heartbeat. Catholic national identity and laws regulating abortion are often closely related even when religious freedom as such is not involved.
Discussions of conscientious objection directly often take the same formula used by the ECHR – “It’s important, but.” In the 2002 European Parliament resolution, allowance is made for “legitimate conscientious objection,” which is non-judgmental and involves a prompt referral to another provider. Illegitimate objection, which aims to delay or prevent abortion, is an implied problem. The Parliamentary Assembly of the Council of Europe’s 2010 resolution, which was originally titled “Women’s Access to Lawful Medical Care: the problem of unregulated use of conscientious objection”, was heavily amended and retitled “The right to conscientious objection in lawful medical care.” Despite the sharply changed position of the title, the distinction between legitimate conscientious objection and illegitimate threat to access remains. The resolution states that the “vast majority of Council of Europe member states” have appropriate regulations for conscientious objection, but reiterates that these should include prompt referral to another provider. The tension created by conscientious objection is visible in the text of the resolution – while it assures the reader that conscientious objection is an important right and that most states are managing it appropriately, it also highlights the risk it poses for women’s access to treatment.
Daniel Hill, a British philosopher speaking on the situation in the United Kingdom, challenges this understanding of conscientious objection by claiming that for believers, providing a referral will be just as morally objectionable to providing the abortion themselves. While he compares abortion to Auschwitz and therefore delegitimizes his entire argument, he does raise the problems inherent in defining religion as a private affair. Article 9’s distinction between the forum internumof absolutely protected belief and the forum externum of regulated manifestation is difficult to apply in such religiously charged situations as abortion. In cases where access to abortion is threatened, placing the blame on religious individuals failing to keep their beliefs to themselves oversimplifies the complicated ways that religion interacts with both the law and with medical practice. Public opinion against abortion in Catholic countries such as Ireland, Poland and the Slovak Republic contributes to limited access through both the laws passed and the public discourse around abortion, and is linked to both religious beliefs and national identity. Doctors operate within medical systems with both written and unwritten rules and norms about what kinds of procedures, from genetic testing to counseling to the abortion itself, can or should be objected to, particularly in Catholic and other religiously-affiliated hospitals. Religion is not a private affair when it comes to abortion – its influence can be seen at multiple levels. Therefore, insisting on a distinction between private and public expressions of religion fails to account for the ways in which religion is actually functioning, which are not easily categorized as one or the other. Characterizing “legitimate” conscientious objection as private, individual and impartial risks both ignoring more powerful barriers to access at these other levels and mischaracterizing religious belief as fully private. If the European Union is to develop strong support for abortion rights, it should abandon the “religion is important, but” framework of division between the public and the private for considering conscientious objection.
Katie Casey is a graduate student in Religion and the Public Domain at University of Groningen and intern for the Center for Religion, Conflict and the Public Domain.
Mark Hill, Russell Sandberg and Norman Doe, Religion and Law in the United Kingdom, (Alphen aan den Rijn: Kluwer Law International, 2012), p. 47.
Anne E.M. van Lancker, “Report on sexual and reproductive health and rights,” European Parliament, 6 June 2002, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A5-2002-0223+0+DOC+PDF+V0//EN
 RR v. Poland, European Court of Human Rights, 28 November 2011, para. 206, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-104911
“Opinion n° 4-2005: The right to conscientious objection and the conclusion by EU member states of concordats with the Holy See,” EU Network of Independent Experts on Fundamental Rights, 14 December 2005, p. 31, http://ec.europa.eu/justice/fundamental-rights/files/cfr_cdfopinion4_2005_en.pdf
 Shane Harrison, “How Savita Halappanavar’s death called attention to Irish abortion law,” BBC, 19 April 2013, last accessed 17 March 2014, http://www.bbc.com/news/world-europe-22204377
Christina Zampas and Ximena Andión-Ibañez, “Conscientious Objection to Sexual and Reproductive Health Services: International Human Rights Standards and European Law and Practice,” European Journal Of Health Law 19, no. 3 (June 2012): p. 243.
 “Resolution 1763 (2010): The right to conscientious objection in lawful medical care,” Parliamentary Assembly of the Council of Europe, 7 October 2010, http://assembly.coe.int/ASP/APFeaturesManager/defaultArtSiteView.asp?ID=950
 Hill, DanielJ. “Abortion and conscientious objection.” Journal Of Evaluation In Clinical Practice 16, no. 2 (April 2010): p. 347.
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