Europe's Choice on Conscience Protection
Public Discourse: Ethics, Law
and the Common Good
October 6, 2010
Reproduced with permission
Matthew Schmitz*
A new resolution before Europe's leading human
rights council attacks conscience and community.
This Thursday the Council of Europe, a transnational body created in 1949
to promote democracy and human rights, will vote on a resolution and series
of recommendations on conscience protection. Americans, who faced similar
issues during the debate over the health care overhaul, will find much of
interest in the resolution. It would create guidelines that encourage member
states to force doctors to perform abortions in some circumstances and to
make referrals for them in every circumstance. Drafted by the pro-abortion
British parliamentarian Christine McCafferty, it is an all-out assault on
conscience and community.
The central feature of the resolution is a call for enforcement against
conscientious objectors who refuse to perform or make referrals for
abortion. The report encourages member states to "establish effective
complaint mechanisms that can address abuses of the right to conscientious
objection and provide women with an effective and timely remedy." While many
European countries are woefully lacking in conscience protection,
authorities have sometimes hesitated to enforce these unjust laws. This
provision seeks to end that. As the European Center for Law and Justice says
in its
report on the proposed law, "the 'conscience clause' is nothing other
than an official immunity from liability for refusing to participate in
abortion." While the law fails to specify how this unjust law will be
enforced, doctors can be forgiven for worrying that its implementation will
be far from sensitive and sympathetic.
Among the report's many specific recommendations,
the most sinister sounding may be a call for the creation of national
registries of conscientious objectors in order to further what the report
describes as "oversight and monitoring mechanisms."
Among the report's many specific recommendations, the most sinister
sounding may be a call for the creation of national registries of
conscientious objectors in order to further what the report describes as
"oversight and monitoring mechanisms." In Norway, doctors are already
required to notify hospitals of their conscientious objector status, and the
hospitals in turn are required to report the names of conscientious
objectors to state authorities. The goal of these mechanisms seems to be to
enable a highly inappropriate and political scrutiny of doctors who have
deeply held objections to procedures like abortion and euthanasia.
The new guideline further restricts conscience by requiring that doctors
give timely notice of their conscientious objections. But what happens if a
doctor's view on conscience changes? What if he is serving as the sole
medical provider in an under-served area? Will he be required to give up his
job?
There is already discrimination against conscientious objectors in
Britain, where the National Health Service has urged hospitals to ask job
applicants whether or not they are conscientious objectors and to refuse to
hire conscientious objectors unless there is an already present physician
willing to perform acts like abortion. One's conscientious objector status
becomes a matter of administrative record that must be consulted at every
step in one's employment, from hiring, to promotion, to professional
security. Conscientious objectors become last hired, first fired.
Consider a doctor who gives up his ability to practice in under-served
areas and instead locates to an urban center that offers ready access to
abortion. Say he also is willing to have his employment be secondary to that
of all his colleagues. He is also willing to fill out the form that will
enter his name in a national registry of conscientious objectors. Will he
then be left alone? Though he is willing to submit to a thousand
harassments, he is still required in all situations to become complicit in
abortion by referring his patients to a doctor willing to perform them.
The rights of doctors are grudgingly and
insufficiently recognized, but the moral agency and freedom of their less
powerful and well-paid colleagues is denied altogether.
The notion that the document is motivated by egalitarianism and a concern
for individual rights is undercut by its creation of two classes of
conscience protection. While doctors directly performing procedures like
abortion are allowed conscience protection, the document refuses to grant
any protections to support staff, such as nurses and assistants, who might
be asked to be involved in the procedure. The rights of doctors are
grudgingly and insufficiently recognized, but the moral agency and freedom
of their less powerful and well-paid colleagues is denied altogether. This
means that if a patient requests abortion or euthanasia, the doctor could
object and face no prosecution. But if a lower-paid nurse levied the same
objection the nurse could be subject to administrative and legal penalties.
While the report preserves a charade of conscience protection for
individual actors, it denies that institutions like religious hospitals have
any right to refuse to perform procedures like abortion. The report claims
that, "the right to freedom of thought, conscience and religion is an
individual right and, therefore, institutions such as hospitals cannot claim
this right." These institutions are not only the corporate expression of
rights to association and free speech; they also play an important
subsidiary role in providing education and medical services, often more
effectively and at lower cost than public providers.
These same issues are taking on increasing importance in the United
States. As the federal government becomes increasingly involved in health
care, the temptation to politicize medicine and weaken longstanding
conscience protections has proved hard to resist. The Patient Protection and
Affordable Care Act (PPACA) passed earlier this year failed to incorporate
the language of the Weldon Amendment, an annual rider to the Health and
Human Services (HHS) appropriation bill that protects conscience. In its
place there are
scattershot partial protections. Health plans are prohibited from
discriminating against institutions and individuals who have conscientious
objections, but governments and entities that receive government funds are
not. Similarly, the Secretary of HHS is prohibited from requiring the
provision of abortion as an "essential service," but there is no similar
exclusion for physician-assisted suicide, contraception or other morally
contentious issues.
As the Council of Europe votes on guidelines that would severely curtail
conscience, the American Congress should move to repair the problems with
the PPACA by passing a bill with comprehensive individual and institutional
protections of conscience. One bipartisan bill, sponsored by Democrat Daniel
Lipinski and Republican Joseph Pitts, seeks to do just that by patching the
holes in PPACA's protections for conscience. Congressmen are understandably
occupied by the upcoming election, but a bill that fixes these issues should
be one of the first orders of business for the new Congress, be it
Democratic or Republican.
Matthew Schmitz is the managing editor of
Public Discourse.
Copyright 2010 the Witherspoon Institute.
All rights reserved.