Protection of Conscience Project News
Service, not Servitude
Dr. Carmen Rodriguez, the president of the Asturias Medical College, the official physician’s association for the region of Asturias in the north of Spain, told a local paper that society can make laws concerning abortion, but cannot force physicians to participate in them. [LifeSite News]
Dr. Manuel Resa, a physician who has resisted attempts to force him to participate in abortions, has been granted an injunction by Superior Tribunal of the Autonomous Community of Andalusia in Spain. He appealed to the Tribunal after a lower court refused to grant the injunction. This means that Dr. Resa will not be forced to participate in abortion pending the outcome of his civil suit on seeking recognition of his freedom to refuse to facilitate abortion.
The UNESCO Chair in Bioethics at the University of Barcelona held a seminar on “Abortion and conscientious objection” in early February. The Chair’s director, Maria Casado, told the press that Spain should establish a national registry of physicians who object to abortion as a method of ensuring access to the procedure. While she claimed to support a right to conscientious objection, she said that “When [it] is transformed into a collective stance for ideological reasons, it turns into civil disobedience.” [ELN]
The new Spanish government, which replaced the former socialist government in November elections, plans to revise the country’s abortion law. It had promised to “change the current legislative model relating to abortion in order to reinforce the protection of the right to life as well as female minors”. [AFP]
News Release
(Strasbourg, France) – On June 22, 2011, the European Centre for Law and Justice (ECLJ) organized a public hearing at the Council of Europe, entitled “Spain: Violations of Medical Practitioner’s Freedom of Conscience”. It was conducted with the Spanish Defense Association of Conscientious Objection (ANDOC) and with the support of the European’s People’s Party.
During this hearing, the ANDOC and ECLJ have launched a comprehensive report detailing, with individual examples, the structural and systemic violations of freedom of conscience for healthcare professionals in Spain, and in particular their right to conscientious objection. The right to conscientious objection is founded on the principle that no one shall be forced to threaten someone’s life. Any attack on human life, when permitted by law, can be only performed voluntarily.
Based on this report, a number of parliamentarians from various national and political parties lead by Luca Volontè and Blanca Fernandez, have addressed a “Written question to the Committee of Ministers” urging this Committee, composed of the Representatives of the 47 Council of Europe Member States, to take action in order to ensure respect for doctors, healthcare and administrative personnel, as well as hospitals and institutions’ right to conscientious objection in compliance with European and international regulation. In the following months, the Committee of Ministers will have to agree on a common written response to the Parliamentary Assembly addressing this specific problem.
In Spain, health professionals suffer structural and systemic violations of their rights. Doctors, nurses, and other medical staff that object to performing or assisting with abortion procedures are coerced and suffer career-crippling sanctions or are legally prosecuted for attempting to exercise this fundamental right, which is recognized by both European and international law.
In particular, they are prevented from exercising their freedom of conscience through the following practices:
Within this structure, there are also other violations such as:
During the hearing, presided by the Spanish parliamentarian and medical doctor, Dr Blanca Fernandez (PPE), has also intervened Dr. Esteban Rodriquez Martin, gynecologist, Prof. José Antonio Diez Fernandez Secretary of the ANDOC, and Dr. Grégor Puppinck, Director of the ECLJ.
Dr. Esteban Rodriguez Martin gave his testimony as a gynecologist and victim of the Spanish regulation on abortion and prenatal diagnostic procedures. He explained that he is now before national courts for refusing to take part in the procedure leading to eugenic abortions.
Dr. Esteban Rodriguez Martin underlined that professionals must request advance approval from Spanish administrative authorities to be listed as a “conscientious objector.” Only health care professionals placed on this list of “objectors” are exempt from performing or assisting with abortions, and often, this requirement is not communicated. As a result, if a woman solicits abortion services, health care professionals who object to providing assistance, but are not pre-registered as an “objector,” are legally obligated to either perform the abortion or give a referral-even if doing so would violate their conscience.
José Antonio Diez Fernandez, Professor of Law and Coordinator of ANDOC, presented the national legal framework leading to this structural violation of medical professional’s rights. He noted, inter alia, that those who register as conscientious objectors suffer further negative consequences and are unjustly singled out for voicing their objection. Often career advancement and health care ratings depend on the number of abortion referrals or procedures completed, he noted. Opting to register as an objector has career-stifling effects, because assessment of an objector’s professional skills becomes linked to ideological beliefs and not to the practitioner’s true merit or ability. He also highlighted how administrative authorities will often refuse a practitioner’s attempt to register as an objector. Though the process is supposedly declarative in nature, in practice, health care professionals may be refused to register as objectors for arbitrary criteria.
Dr. Gregor Puppinck, Director of the ECLJ, analyzed the situation in regard to the legal obligations of Spain under European and International law.
He recalled in particular the resolution 1763/2010 “On the Right to conscientious objection in the field of health” adopted in October 2010 by the Council of Europe Parliamentary Assembly holding that:
“No person, 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.”
He also commented on the case law of the European Court of Human Rights (ECHR) related to Conscientious objection underlining, in particular, the fact that in numerous decisions since the 1989 Rommelfanger v. Germany ruling (no. 12242/89), the Court has recognized the right of institutions based on a specific ethos, such as religious hospitals, to exercise – on an institutional level – their right of conscientious objection to abortion and other related practices.
Grégor Puppinck also commented on the ECHR’s recent ruling in the case R.R. v. Poland (no. 27617/04) of May 26, 2011. In this case, the Court asserted that if a State decides to legalize abortion, it is then “obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.” Two aspects of this ruling are of particular interest: first, it expresses the right to an “effective exercise of the freedom of conscience of health professionals in the professional context”, and second, it does not say that the access to abortion should be ensured at the expense of the fundamental rights of health professionals, but it say, however, that the State has to respect both.
Dr Puppinck concluded that in this regard, it is clear that the Spanish regulation does not respect both the individual and institutional right not to take part in an abortion process.
The ECLJ thoroughly supports ANDOC’s efforts to draw attention to this important issue. The right to conscientious objection must be respected. Rather than punishing health care professionals for exercising this right, Spanish authorities must comply with European and international standards to protect this right from the structural and systematic violations that conscientious objectors in Spain are experiencing today.
CoE PACE Resolution 1763 (2010) on “The right to conscientious objection in lawful medical care”
Written question to the Committee of Ministers on the violations of the right to conscientious objection in lawful medical in Spain. English | Spanish
2011 ECLJ Memorandum on the Proposed Pace’s Resolution on “Women’s Access to Lawful Medical Care: The Problem of Unregulated Use uf Conscientious Objection”. September 2010. English | Spanish
The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007.
The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others.