Importance of the PACE draft resolution on “Women’s access to lawful medical care: the problem

of unregulated use of conscientious objection”


The Parliamentary Assembly of the Council of Europe will discuss and vote on the resolution on

Women’s access to lawful medical care: the problem of unregulated use of conscientious objection”

(Doc. 12347, 20 July 2010) on 7 October 2010 during the 2010 Ordinary Session in Strasbourg.

The draft report and resolution (attached to this summary) was prepared by Ms Christine McCafferty

(United Kingdom, SOC) and adopted by the Social, Health and Family Affairs Committee on 22 June

2010.


Why is the draft resolution significant?

International law recognizes the importance of conscientious objection to the exercise of an

individual’s right to freedom of thought, conscience and religion.1 However, international standards

also recognize this must be balanced against an individual’s rights including right to life, health,

privacy and non-discrimination.2 And that states have a duty to ensure that exercise of such refusals

does not harm the health and rights of patients. If adopted, this resolution will be in accordance with

international human rights standards, which include rights relevant to health care providers and users

in the context of conscientious objection, as set forth in 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). This resolution will provide guidance to states on how the right to freedom of thought,

conscience and religion can appropriately be balanced with the right to access lawful medical

services. It has potential to ensure that interests and rights of both healthcare providers and

individuals seeking legal medical services are respected, protected and fulfilled.

In many member states of the Council of Europe, the practice of conscientious objection in the

medical field is largely unregulated. In a number of countries, women are denied access to lawful

reproductive health services, where conscientious objection most often arises, severely effecting their

health and lives. The unregulated practice disproportionately affects low income and rural women.

Two cases pending before the European Court of Human Rights against Poland illustrate the impact the

unregulated practice has on women’s lives. One in which a woman was repeatedly denied a genetic

prenatal examination she was legally entitled to receive3 and the other case concerns a woman with a

wanted pregnancy who was refused diagnostic care and treatment by doctors, in part, because of they

claimed it would harm her foetus. Tragically, she miscarried and then died due to the lack of care.4

In Austria healthcare professionals frequently conscientiously object to performing abortion and there are

no specific legal guidelines regarding this practice.5 In Bratislava, Slovakia’s capital, a recent news

report notes that only one out of five public hospitals provides abortion.6 Moreover, hostile and

judgemental treatment from some health personnel in the remaining hospital towards a woman

undergoing abortion on request has been reported.7 It is not unusual that practitioners who provide this

medical service face contempt and judgemental behaviour from their colleagues who object to performing

abortions.

Where comprehensive and clear regulations exist, many member states lack oversight and

monitoring mechanisms to ensure that healthcare providers act in accordance with these regulations

and that patients can exercise their right to access lawful health services (e.g. Poland or Italy).



According to data provided by Italy’s Ministry of Health, nearly 70% of gynaecologists and 50.4% of

anaesthetists in Italy refuse to perform or participate in abortions. In the southern parts of the country, the

numbers are even higher.8


What has the European Court of Human Rights said about this issue?

The European Court of Human Rights, in the only decision to date that addresses the issue in a

reproductive health care context, held that two French pharmacists, who refused to deliver medically

prescribed contraceptives, were imposing their beliefs on the public. The Court declared the application

inadmissible and explained that ‘religious beliefs can be manifested in many ways outside the

professional sphere’ and that the right to freedom of religion, as a matter of individual conscience, does

not always guarantee the right to behave in public in a manner governed by that belief. The Court

concluded “as long as 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.”9 This is the only case thus far

where the Court has ever addressed conscientious objection in access to health care.


What does the draft report and resolution recommend to member states?

To develop comprehensive and clear regulations that define and regulate conscientious objection

with regard to health and medical services, including reproductive health services, which:

a. guarantee the right to conscientious objection only to individual healthcare providers directly

involved in the performance of the procedure in question, and not to public/state institutions such

as public hospitals and clinics as a whole;

In France, a Constitutional Council decision recognized that conscientious objection applies to

individuals, not institutions.10 In Germany, the Federal Administrative Court indicated that public hospitals

must provide abortions, enabling women to realize their entitlement to abortion under the law.11

b. oblige the healthcare provider to:

provide information to patients about all treatment options available (regardless of whether

such information may induce the patient to pursue treatment to which the healthcare provider

objects),

inform the patient in a timely manner of any conscientious objection to a procedure, and to

refer patients to another healthcare provider in that case,

ensure that the patient receives appropriate treatment from the healthcare provider to whom he

or she has been referred;

For example, in Poland a woman with wanted pregnancy died as a result of being denied necessary

medical treatment on the grounds that doctors conscientiously objected to this treatment for fear it would

harm the foetus.12

c. oblige the healthcare provider to provide the desired treatment to which the patient is legally

entitled despite his or her conscientious objection in cases of emergency (notably danger to the

patient’s health or life), or when referral to another healthcare provider is not possible (in

particular when there is no equivalent practitioner within reasonable distance).

Only eleven Council of Europe member states expressly prohibit the invocation of conscientious objection

in the case of emergency or risk of death as well as danger to the patient’s health.13

To provide oversight and monitoring, including an effective appeals mechanism if a patient is denied

access to services they are legally entitled to receive so as to ensure that everyone has access to an

effective and timely remedy, and to guarantee the effective implementation and enforcement of these

regulations within member states’ respective health services.

The aim of this recommendation is not an adversarial proceeding, but to ensure effective access

to lawful health care. In Tysic v. Poland, a case which did not concern denial of abortion due to

conscientious objection, but lack of an effective means of appeal in case of lawful therapeutic

abortion, the European Court of Human Rights recognized the importance of a timely remedy due

to legal and biological time restrictions on abortion and pregnancy, and emphasized that “[o]nce

the legislature decides to allow abortion, it must not structure its legal framework in a way which

would limit real possibilities to obtain it.”14

In Poland, Croatia and Hungary, laws require physicians to inform patients of any conscientious

objection to a procedure and refer such patients to other doctors, but they do not have an oversight

mechanism to ensure that this happens, leaving many patients without a referral.15 In addition, in

Poland, it has been reported that some doctors who refuse to perform lawful abortions in public hospitals

will offer patients to perform abortions privately, for excessive money.16

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1

See Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion, UN Doc.

HR1/GEN/1/Rev. 1 (1993) (the right to conscientious objection can be derived from the right to freedom of thought, conscience and

religion); European Union Network of Independent Experts on Fundamental Rights, Opinion No. 4-2005: The right to conscientious

objection and the conclusion by EU Member States of concordats with the Holy See (2005).

2

See EU Network of Independent Experts on Fundamental Rights, id. See also Art. 9(2) of the European Convention on Human

Rights that reads: “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.”; Human Rights Committee (CCPR), General Comment 22: The right to freedom

of thought, conscience and religion, CCPR/C/21/Rev.1/Add.4; Committee on Economic, Social and Cultural Rights (CESCR),

General Comment 14: The right to the highest attainable standard of health, E/C.12/2000/4.

3

RR v. Poland, ECtHR, Appl. no. 27617/04, the case is pending.

4

Z. v. Poland, ECtHR, Appl. no. 46132/08, the case is pending.

5

PACE – Social, Health and Family Affairs Committee, “Women’s access to lawful medical care: the problem of unregulated use of

conscientious objection”, Explanatory memorandum by Ms McCafferty, rapporteur, Doc. 12347, 20 July 2010 [hereinafter

Explanatory memorandum by Ms McCafferty, rapporteur”], para. 46, citing to International Planned Parenthood Federation

European Network, Abortion Legislation in Europe.

6

Potrat? Nerobíme! Chote inam, hovoria lekári Slovenkám” (“Abortion? We do not perform! Go somewhere else, the doctors say

to Slovak women”), 30 July 2010, available at: http://tvnoviny.sk/zeny/top-tema/potrat-nerobime-chodte-inam-hovoria-lekari-

slovenkam.html (last visit: 27 August 2010).

7

Id.

8

Explanatory memorandum by Ms McCafferty, rapporteur, supra note 5, para. 45, citing to Republic of Italy, Ministry of Health,

Report of the Ministry of Health on the Performance of the Law Containing Rules for the Social Care of Maternity and Voluntary

Interruption of Pregnancy: 2007-2008.

9

Pichon and Sajous v. France, ECtHR, Appl. no. 49853/99 (admissibility decision).

10

Explanatory memorandum by Ms McCafferty, rapporteur, supra note 5, para. 26.

11

Explanatory memorandum by Ms McCafferty, rapporteur, id. para. 27.

12

Z. v Poland, supra note 4.



Explanatory memorandum by Ms McCafferty, rapporteur, supra note 5, para. 40.

14

Tysic v. Poland (2007), ECtHR, Appl. no. 5410/03, ¶ 116.

15

Explanatory memorandum by Ms McCafferty, rapporteur, supra note 5, para. 33.

16

Reproductive Rights in Poland, the effects of the anti-abortion law, Federation for Woman and Family Planning, edited by Wanda

Nowicka (2008).