Iona Institute
Reproduced with permission
At the end of June, Ms Justice Laffoy presented her report on the Citizens’ Assembly meetings dedicated to the discussion of the 8th amendment. In spite of calls for the provision and regulation of conscientious objection to abortion, the report has made no recommendation about it.
The Citizens’ Assembly members voted for Article 40.3.3 to “be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn, and any rights of the pregnant woman.” If this will happen it will be also necessary to regulate the right of conscientious objectors.
As one of the purposes of the Citizens’ Assembly was to make recommendations about what should be included in a possible new legislation, one wonders why it failed to address this fundamental issue, ignoring the suggestions and requests coming from Assembly members, private citizens, advocacy groups and professional bodies.
During the first weekend of the Citizens’ Assembly, in November, members were asked to identify topics that they believed to be important. The regulation of conscientious objection was one of the key points raised. Following their request, at the February meeting Prof. Gerard Bury delivered a paper on the “Regulation of the medical profession and issues arising including conscientious objection”. Other speakers have occasionally referred to the same issue.
Some submissions from private citizens, advocacy groups and professional bodies have also dealt with this topic, suggesting different solutions to the regulation of conscientious objection. These submissions came both from the pro-life and the pro-choice sides. (See, for instance, the contributions of the Green Party, Amnesty International Ireland or the Irish Council for Civil Liberty.) Unfortunately, we know that the large majority of those submissions have been ignored by the Assembly and only a random selection have been offered to its members for reflection.
Freedom of conscience is recognised by art. 9 of the European Convention on Human Rights. The Parliamentary Assembly of the Council of Europe approved a resolution on the right of conscientious objection in lawful medical care stating that “No personal, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.”
Note that the resolution refers not only to individuals but also to hospitals and institutions. This is precisely what is missing in the current legislation, which allows conscientious objection only to some healthcare professionals but not to entire hospitals and institutions. Any discussion on abortion inevitably has to address who can object to their performance and in what circumstances. The submissions have proposed different solutions. Why then there was no vote by Assembly members on conscientious objection? Why not even an ancillary recommendation about it?
The PACE resolution quoted by the author was actually a rebuttal to efforts by Sweden and others to solve what was called “the problem of unregulated use of conscientious objection” in Europe. As the Project pointed out in its submission to the Assembly, what this actually meant was that too many people in Europe were refusing to do what they believed to be gravely wrong – and that this was a “problem.”
The author is obviously supportive of conscientious objection to abortion, but his concern about the need to regulate it is misplaced, and may simply be an unfortunate manner of expression. Conscientious objection is a manifestation of freedom of conscience, so calls to “regulate” conscientious objection are actually calls for the state to regulate the exercise of a fundamental freedom. This is not customary in liberal democracies, and what has been proposed by way of “regulation” is not infrequently offensive. It has been seriously suggested that physicians who wish to exercise freedom of conscience should be made to appear before a state committee to obtain a licence to do so. The Swedish proposal to PACE urged that those wanting to make moral or ethical decision be registered, at least by employers, if not by the state. Attempts to “regulate” freedom of speech, expression, association, etc. by such means would have met ferocious opposition.
In 2000, in a submission to the All-Party Oireachtas Committee on the Constitution, the Project warned that a change in the abortion law in Ireland would likely be problematic for anyone opposed to the procedure. The submission noted that strong safeguards for freedom of conscience would be essential, including protection against compulsory referral, which some physicians find unacceptable.
It is essential to recognize that if freedom of conscience is overridden with respect to abortion (or any other morally contested procedure), it will eventually be overridden for every morally contested procedure, including euthanasia and assisted suicide. The Project is an intervener in a constitutional challenge to a demand by the College of Physicians and Surgeons of Ontario that physicians unwilling to kill patients or help them commit suicide must direct them to a colleague willing to do so. The policy is an example of the kind of “regulation” of freedom of conscience favoured by those who actually want to suppress it in particular cases.