A look into the ECHR’s stance on conscientious objections of pro-life health care providers in relation to abortion MAEBH NI GHUAIRIM SS LAW AND POLITICS
Since May 2018, when Ireland voted to repeal a constitutional amendment that made abortion legal, pro-life health care providers have been lobbying to be granted freedom of conscience. The Health Minister has promised that GPs will not be forced to perform abortions, however he maintained that they will have to refer their patients to a nonobjecting provider. Pro-life groups feel that this still breaches their rights and have pledged to bring the case to the European Court of Human Rights. The question this article attempts to answer is whether or not conscientious objection to the provision of healthcare is covered by Article 9 of the European Convention to Human Rights and will do so by first looking at the relevant case law before applying it to Ireland. Thus far, the Court has been reluctant to engage fully with the issue of conscientious objection to healthcare. That being sad, the most relevant case for us to examine on the topic is that of Pichon and Sajous v. France. In this case, two French pharmacists were convicted of refusing to sell contraception to three women. The applicants argued that as Christians, they had a religious and moral objection to contraception and the conviction was an affront to their right to freedom of religion. The Court, however, held that their application was inadmissible as their conviction did not fall under Article 9. It reaffirmed that citizens must be free to hold religious beliefs, however it distinguished between the holding of a belief and the manifestation of said belief. Article 9 protects religious practices which are closely linked to the exercise of religious beliefs but does not cover all actions which are motivated by a religion or a moral conviction. Additionally, this protection only covers most private, rather than public, actions. As such, the Court held that this case did not fall under Article 9.
constitutes reasonable interference with that right, the law on conscientious objection in healthcare would have been a lot clearer. As it stood, what is most evident is that public healthcare workers cannot prioritize their beliefs over their professional obligations, as they can express their beliefs through other private channels. This implies that the court takes a balancing approach when determining whether an interference with an individual’s freedom of conscience was legitimate. If the court accepted that refusing to sell contraception was a manifestation of religious beliefs, they would have used a triple-pronged test to see whether or not the State’s interference was legitimate. The interference must be “prescribed by law”, have “legitimate aims”, and be “necessary in a democratic society”. In Pichon, the interference was lawful as there were no laws exempting the pharmacists and the French State had legitimate aims in hoping to protect public health. Lastly, it was accepted as necessary in a democratic society as it is vital that women have access to reproductive healthcare. Ensuring that pharmacists provide such care was deemed a proportionate response. Since Pichon, the court has looked at several cases in Poland dealing with conscientious objection and abortion. Although the court has not recognised the right to abortion, in R.R. v Poland, the Court held that once a State decides to allow abortion, they cannot establish obstacles which prevent women from accessing the procedure. Furthermore, if they allow for the exercise of conscientious objection, they must put a system in place to ensure that patients have access to the healthcare that is legally available to them. In P. and S. v. Poland, this position was confirmed. Moreover, the State must ensure that the system is enforced, there should at least be a prior record of objection and that referrals must be given to the patients. As such, should an Irish case on conscientious objection come to the ECHR, it is doubtful the
Here, the court relied upon previous judgements rather than dealing comprehensively with conscientious objection in health care. Had they accepted the applicants’ actions as a manifestation of their religion, and subsequently discussed what The Eagle Gazette Volume 5 Issue 2 · 3
