Submission to the Parliamentary Assembly of the Council of Europe
Re: Women's access to lawful medical care: the problem of
unregulated use of conscientious objection.
6 October, 2010
The Protection of Conscience Project is a non-profit,
non-denominational initiative that advocates for freedom of conscience in
health care. This letter concerns the Report from the Social Health and
Family Affairs Committee that will be considered by the Assembly on 7
The Project's submission will be brief, since others, notably the
European Centre for Law and Justice, have provided the Assembly with
detailed critiques of the Report.1 Resources
that are relevant to the Report's claims and recommendations are available
on the Project website, which one of the experts consulted by the Committee2
considers "excellent and informative."3
Turning to the Report, the Social, Health and Family
Affairs Committee asserts that it is "deeply concerned
about the increasing and largely unregulated occurrence"
of the exercise of freedom of conscience in Europe.
According to the Committee, too many European citizens in positions of
responsibility refuse to do what they believe to be gravely wrong. The
Committee recommends that member states adopt "comprehensive and clear
regulations" to address this problem.4
The Committee suggests a number of rules that should
be included in such regulations.
Specifically, it recommends that those who intend to exercise freedom of
- should be made to prove that their intention is based upon morality,
ethics or religion;
- should be made to prove that they are honest and sincere;
- should be made to notify employers and others of their intention to
make moral or ethical decisions;
- should be formally registered, at least by employers, as persons who
intend to make moral or ethical decisions.5
Having complied with these requirements, citizens
will be permitted to exercise freedom of conscience
within limits that have been carefully defined by
the Committee. Specifically, if asked to do
something they believe to be wrong, they may refuse
to do it, but they must ensure that the wrongful act
is done by someone else.6
If this is not possible, they must do it themselves.7
The Committee notes the need to institute "oversight
and monitoring" to ensure that people do what they
believe to be wrong when it is required of them. It also
recommends that "effective complaint mechanisms" be
established so that unauthorized or erroneous exercise
of freedom of conscience can be denounced to appropriate
Finally, the Committee asserts that individuals can
exercise freedom of conscience "and, therefore,
institutions such as hospitals" cannot.9
On the face of it, this means that because an individual
can make moral or ethical decisions, two or more
individuals acting in concert cannot - or should not -
be allowed to do so. Hence (the Committee argues) a
hospital cannot have a code of ethics or morality that
governs its operations.
In that case, of course, neither can the medical
profession. And if the Committee is correct in its view
that a collective incorporated as an institution cannot
establish policies or rules about moral or ethical
behaviour by its members, the member states of the union
cannot make the regulations recommended by the
Committee. All of this suggests that the Committee's
reasoning on freedom of conscience as it relates to
institutions and collectives is incoherent.
This incoherence arises from the limited perspective of the Committee. In
stating the case as a problem of conscientious objection in health care, it
has framed the issue too narrowly and adopted an inadequate framework for
reflection and analysis.
What is at issue here is the meaning and importance of freedom of
conscience as a fundamental good of the human person and society, and the
implications for that in working out the requirements of rational pluralism.
Considering the Report from this broader perspective, as we do here, it
becomes apparent that its recommendations are offensive to human freedom and
dignity and repugnant to fundamental principles of liberal democracy.
It may be argued that the narrow focus of the Report results from its
attention to a specific kind of conflict that exists primarily in health
care. This explanation is reasonable, as far as it goes, but still
insufficient. Granted the focus on a particular type of conflict, why,
absent careful consideration of the broader issues, attribute the cause of
the conflict to "the problem of conscientious objection" rather than "the
problem of inordinate expectations"?
And if conflict exists primarily in health care, why is this so, and what
response does it call for? After all, people in other walks of life are
probably, on the whole, no more or less moral or ethical than physicians and
other health care workers. If this conflict exists primarily in health care,
surely it must be because health care workers are, more often than others,
asked (or told) to do what they believe to be wrong. This is surely a reason
to provide health care workers with more robust protection for freedom of
conscience, not an excuse to deprive them of fundamental freedoms that their
fellow citizens take for granted.
In sum, the Report does not provide the Assembly with an adequate basis
upon which to formulate recommendations to member states in the Union, and
is, moreover, surprisingly inconsistent with the best philosophical and
political traditions of European nations.
1. European Centre for Law
Memorandum on the PACE Repot, Doc. 12347, 20 July, 2010 (September,
2010) Accessed 2010-10-04
Report, Social Health and Family Affairs Committee, Women's access
to lawful medical care: the problem of unregulated use of conscientious
objection. Doc. 12347 (20 July, 2010) (Hereinafter
"the Report) Explanatory
memorandum by Mrs. McCafferty, Part 1, paragraph 2, note 5 (Joanna
3. E-mail from Joanna
Mishtal to the Project Administrator, 17 June, 2010.
4. ". . . the Social,
Health and Family Affairs Committee is deeply concerned about the
increasing and largely unregulated occurrence of [conscientious
objection]. . . The Parliamentary Assembly should thus invite member
states to develop comprehensive and clear regulations that define and
regulate conscientious objection. . ." The Report, Summary, p. 1.
5. The Report,
Section 4.1, paragraph 19.
6. The Report,
Part A. ( Draft Resolution) paragraphs 184.108.40.206 - 220.127.116.11
7. The Report,
Part A. (Draft Resolution) paragraph 4.1.3
8. The Report,
Summary, p. 1
9. "According to
international human rights law, the right to freedom of thought,
conscience and religion is an individual right and, therefore,
institutions such as hospitals cannot claim this right." The Report,
Section 4.2, paragraph 25. Despite the claim that this assertion has a
basis in law, no authority is cited to support it.