New ECSR decision on conscience-based refusals protects women’s right to access abortion

Guest post by Katrine Thomasen, Legal Adviser for Europe, Center for Reproductive Rights. The Center for Reproductive Rights together with the Swedish Association for Sexuality Education (RFSU) submitted joint observations to the ECSR regarding the complaint.

The European Committee of Social Rights (Committee) recently rejected a complaint filed by the Federation of Catholic Families in Europe (FAFCE) against Sweden that claimed health professionals are entitled to deny women legal abortion services based on claims of personal conscience. In dismissing each one of FAFCE’s claims, the Committee reaffirmed women’s right to access reproductive health services and upheld Sweden’s robust legal and policy framework that protects these rights. The decision reinforces previous jurisprudence from the European Court of Human Rights that women’s access to reproductive health care may not be jeopardized by health care professionals’ personal refusals to provide relevant services.

The European Committee of Social Rights’ decision

At the heart of FAFCE’s complaint was a claim that, under Articles 11 (right to protection of health) and E (non-discrimination provision) of the European Social Charter, health care professionals in Sweden have a right to refuse to provide legal abortion services on grounds of personal conscience. FAFCE argued that Sweden had failed to protect this right because it had not established an effective regulatory framework governing conscience-based refusals of abortion services. Under Swedish law health care providers have a duty to provide legal abortions and although health care institutions may exempt an employee from performing abortions there is no entitlement to exemption.

The Committee unreservedly disagreed with FAFCE’s assertions. It found that under the Charter neither the right to health (Article 11), nor the right to non-discrimination in the enjoyment of rights (Article E), give rise to an entitlement on the part of health professionals to refuse to perform abortion services on grounds of personal conscience. Recalling its decision in the IPPF v. Italy case the Committee again affirmed that the primary purpose of Article 11 is to guarantee individuals’ access to adequate health care and not to protect the interests of health care providers; when it comes to reproductive health care the primary rights holders under the Charter are women, not their doctors. Importantly, the Committee also went on to underscore that the Charter, “does not impose on states a positive obligation to provide a right to conscientious objection for health care workers.” As a result, Sweden is not required to allow conscience-based refusals of abortion services or to regulate the matter.

The Committee also rejected FAFCE’s attempts to expand the application of the Charter through allegations that its provisions provide protection to pre-natal life. Instead, the Committee affirmed that Sweden’s abortion laws and policies, which offer strong protection to women’s reproductive rights, are fully in compliance with the Charter.

Emerging European regional jurisprudence on conscience-based refusals in the reproductive health sphere

The Committee’s decision is the latest addition to European regional jurisprudence on conscience-based refusals of reproductive health care. Although certain claims before the European Court of Human Rights and the Committee have raised the issue from the perspective of women seeking access to reproductive health care and others have departed from the perspective of health care providers seeking to refuse such care, two clear common threads have emerged in the findings of both the Court and the Committee. First, that neither the European Convention nor the Charter entitle health care providers to claim a right to refuse reproductive health services on grounds of personal conscience. Second, that where domestic law does allow a possibility for health care professionals to refuse services on grounds of conscience, states must ensure that this does not jeopardize women’s access to legal reproductive health services.

Although the Committee’s decision in FAFCE marks the most explicit finding yet that international human rights standards do not give rise to an entitlement to refuse health services on grounds of personal conscience, and although the Committee’s decision was concerned in particular with the right to health, certain pronouncements of the Court point implicitly in the same direction. In the case of Pichon and Sajous v. France, the European Court held that a claim by pharmacists that they had a right under Article 9 of the Convention to refuse to sell contraceptives because of their personal beliefs was inadmissible. The Court remarked that Article 9 of the Convention does not protect, “each and every act or form of behavior motivated or inspired by a religion or belief.” It went on to state that, “as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.” The Court concluded that there had been no interference with the rights guaranteed by Article 9 and dismissed the claim as manifestly ill-founded.

The Court reiterated its view that Article 9 does not protect all acts motivated by religion or belief in the case of R.R. v. Poland. In that case, the Court upheld a woman’s claim that her rights under Article 8 were violated when she was denied access to timely pre-natal genetic testing in part as a result of conscience-based refusals by doctors in Poland. The Court noted that where a domestic legal system does allow for conscience-based refusals, “States are 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.”

Then in the case of P and S. v. Poland, which concerned prolonged denial of legal abortion services for an adolescent girl who was pregnant as a result of rape, the Court held that where domestic law allows health care professionals to refuse to provide health care on grounds of conscience a state must ensure this does not impede women’s access to abortion services to which they are entitled under domestic law. It found that Poland’s serious failures in this regard violated Article 8.

This approach was in turn reiterated by the Committee in IPPF v. Italy. Where domestic law allows for health care professionals to refuse to provide legal reproductive health services, states must effectively regulate and monitor the practice in a manner that ensures that women can exercise their right to access necessary care in practice.

While each of these cases offers a different lens through which to examine the issue of conscience-based refusals of reproductive health care, a common guiding principle emerges. No matter what the starting point or rights at stake, the jurisprudence confirms that women’s right to access to timely and quality reproductive health services may never be jeopardized by health-care professionals’ claims of personal conscience.

Yet, in a number of European countries, including Poland and Italy, refusals of care by both individual health care providers and by health care institutions, continue to undermine women’s access to reproductive health services, calling into question states’ compliance with human rights standards and the jurisprudence of both the Court and the Committee. The emerging jurisprudence, including this latest decision by the Committee, provide an important reminder to European states that they may not allow health care providers’ claims of personal conscience to impede women’s access to reproductive health services.

 

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