During the June 2010 session of the Parliamentary Assembly of the Council of Europe (PACE), the Social, Health and Family Affairs Committee approved the Women’s access to lawful medical care: the problem of unregulated use of conscientious objection report, proposed by Christine McCafferty (UK) (the council of Europe is entirely separate from the European Union). The report will receive its final debate by PACE between 4 - 8 October 20. (§ refers to the exact location of the reference below).
This report claims ‘the Parliamentary Assembly is deeply concerned about the increasing and largely unregulated occurrence of this practice, especially in the field of reproductive health care, in many Council of Europe member states’(§ A.1). However, no evidence is provided, making the claim an unwarranted assertion. Reproductive healthcare, as defined by the World Health Organisation’s definition and Reproductive Health Strategy, includes abortion, sterilisation, contraception, and reproductive and sexual education.
The report presents ‘family planning services and reproductive technologies, safe abortion services where legal, and pain-relief by life-shortening means for terminally ill patients’ (§2.4) as a human right to healthcare. This is false, as seen from Tysiac v. Poland, in which the European Court of Human Rights recognised State sovereignty in strictly regulating the law on abortion, and the right of medical staff to conscientious objection. This is also evidenced in the laws of Malta, Monaco, Andorra, San Marino, and Ireland. Furthermore, there is also a subtle move in favour of euthanasia under the guise of pain-relief for the terminally ill.
The right of conscientious objection to anti-life practices is being radically challenged by the McCafferty report. If this report is approved, this right will be denied to state and public institutions and all medical, support, and administrative staff not directly involved in the abortion, sterilisation, contraception or euthanasia procedure (§4.4.37). If approved, medical staff will be forced to provide information and literature promoting abortion and contraception (§220.127.116.11), and forced to refer a woman to another medical professional who is willing perform the anti-life procedure (§4.3.29).
Furthermore, if the case is considered an emergency, or there is no other medical professional available for referral, the right to conscientious objection is denied (§4.3.29), forcing a doctor or other medical professional to act against their conscience by performing an abortion or providing the morning after pill, for example. This is very dangerous; ‘emergency’ is not defined. An abortion could be considered an ‘emergency’ based on relative and subjective criteria making every case for abortion an ‘emergency.’
The McCafferty report invokes article nine of the European Convention on Human Rights (ECHR) to argue that a medical professional who refuses to perform an abortion is acting in a way that threatens the protection, health, rights and freedoms of the public and individuals (§3.11). The ECHR provides no right to abortion; article 2.i recognises the fundamental right to life. Furthermore, there is no consensus amongst member states that abortion is a right under Article 9, as demonstrated in the case of ABC v Ireland, in which three women are challenging Ireland’s ban on abortion by arguing that abortion is a right under Article 2 of the ECHR. The McCafferty report recognises that pregnancy and birth involve a ‘child’ and ‘baby’ (5.2.49)
The McCafferty report proposes an official complaints procedure to investigate and penalise a medical professional who is deemed to have unjustly exercised conscientious objection (§4.6.41). No clause to ensure impartiality is mentioned. There is no discussion of right to appeal. An external, independent body to ensure impartiality and fairness of procedure is not considered, and no mention is made of the right to representation and the calling of witnesses. This report demonstrates a significant bias against those who exercise conscientious objection
We should compare the McCafferty report with the document on conscientious objection (Directorate General of Human Rights and Legal Affairs Council of Europe December 2007), resolution 337 (1967), and recommendations 816 (1977), R(87)8, 1518 (2001), by the Council of Europe, concerning conscientious objection to military service. These documents ensure the right to conscientious objection, and set in place safeguards for the person exercising their right to conscientious objection. Significantly, the Bandrés Molet & Bindi Resolution (1994, §14), having regard for the above mentioned documents, calls on all member states to ensure the right to conscientious objection, even if a state no longer has conscription or military service. Therefore, the rights and safeguards can and should be extended to cover areas other than military service, making conscientious objection to anti-life medical practices better protected by law and better facilitated in practice. This does not mean we approve of the McCafferty report recommendation and want to see a fair complaints procedure; conscientious objection is a fundamental right that no court, committee or procedure can penetrate, examine, investigate or legislate against in the first place.
The McCafferty report presents a flawed understanding of conscientious objection, claiming that it is based on ‘personal convictions and ethical values...very often linked to religion’ that ‘can stand against their readiness to provide certain medical information and services’ (§2.4). This understanding ignores the question of truth and objective morality, by basing conscientious objection within the private subjective sphere of personal convictions and values. This is in opposition to the above mentioned documents on military service, which recognise the ‘profound conviction arising from religious, ethical, moral, humanitarian, philosophical or similar motives’ (337 (1967) A.1). It is of great concern that the McCafferty report adopts the same language as those who argue against the fundamental right of contentious objection, as demonstrated in paragraphs §2.4 and 2.6.
This report has been produced and presented by radically pro-abortion advocates. These include: Christine McCafferty, ex-Labour MP, member of PACE Socialist Group; Dr Christian Fiala, President of the International Federation of Professional Abortion and Contraception Associates, Austria; and Ms Christina Zampas, Senior Regional Manager and Legal Adviser for Europe of the Center for Reproductive Rights, New York & Stockholm (§1.2 n2).
Ex Labour MP
The list of Irish representatives for PACE are here