The Catholic bishops of Ireland have sent a briefing note to the Oireachtas (Irish parliament) concerning the controversial Protection of Life During Pregnancy Bill 2013. Among the criticisms of the bill was the following reference to the bill’s protection of conscience provision:
3. The Bill also creates a number of serious moral, legal and Constitutional conflicts in the area of freedom of conscience and religious belief, notably:
A. The Bill provides for conscientious objection by ‘any medical practitioner, nurse or midwife’ only. It excludes others who may be obliged to co-operate in providing abortion services against their conscience or religious belief. This is in contrast to the wording of the proposed Protection of Human Life in Pregnancy Bill 2001, which provided for conscientious objection by ‘any person’ carrying out or assisting in an abortion. The operation of this clause is also unacceptable because it involves a form of co-operation in evil by obliging those who conscientiously object to knowingly put the patient in to the care of medical personnel who will carry out an abortion. In effect, therefore, medical personnel are being given no choice but to cooperate in an abortion. This is in contrast to the practice in many other countries which ask only that the patient be handed over to the care of other medical personnel. Limiting the scope of conscientious objection in this way is potentially in conflict with Article 44.2.3 of the Constitution, which states that: “The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status”, with the general direction of legal interpretation of Article 9 of the European Convention on Human Rights and with recent UK based cases such as Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36.
B. Article 44.2.3 also raises important questions of principle about the application of the Party Whip system to oblige members of the Oireachtas to vote in favour of this legislation, against their religious conscience. It may even open the possibility of a Constitutional challenge to the legislation itself on the basis of an un-constitutional legislative process.
C. The obligation on ‘appropriate institutions’ identified by the Minister to provide abortion services may be in conflict with existing legal arrangements and, in some cases with Article 44.2.5 of the Constitution, which states that: “Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes”.