Analysis of Pichon and Sajous v. France

European Journal of Health Law 15 (2008) 7-43
www.brill.nl/ejhl
Conscientious Objection in Reproductive Health Care: Analysis of Pichon and Sajous v. France
Adriana Lamakov*
Abstract This article explores the issue of conscientious objection invoked by health professionals in the reproductive and sexual health care context and its impact on womens ability to access health services. The right to exercise conscientious objection has been recognized by many international and European scholars as being derived from the right to freedom of thought, conscience and religion. It is not, however, an absolute right. When the exercise of conscientious objection conicts with other human rights and fundamental freedoms, a balance must be struck between the right to conscientious objection and other aected rights such as the right to respect for private life, the right to equality and non-discrimination, and the right to receive and impart information. Particularly in the reproductive health care context, states that allow health professionals to exercise conscientious objection must accommodate this in such a way that its exercise does not compromise womens access to health services. This article analyses the European Court of Human Rights decision on admissibility in Pichon and Sajous v. France (2001) and argues that a balancing approach should be applied in cases of conscientious objection in the sexual and reproductive health care context. Keywords conscientious objection; sexual and reproductive health; womens rights; health professionals
Introduction In 2001, the European Court of Human Rights (the Court) issued its decision on admissibility in the case of Pichon and Sajous v. France.1 Two French pharmacists claimed that their freedom to manifest their religion had been violated as a result of their conviction by French authorities for refusing to dispense oral
*) Mgr. (University of Pavol Jozef afrik, Slovakia, 2000), LL.M. (University of Toronto, 2006), PhD. (Charles University in Prague, 2007). I am grateful to Professor Rebecca J. Cook (Faculty of Law, University of Toronto) for her invaluable encouragement, support and comments upon my Masters thesis (2006), a revised version of which is presented here. Special thanks to Lisa M. Kelly (LL.M. Candidate, Harvard Law School) for her thoughtful comments on previous drafts of this article. The research for this article was made possible by the Graduate Scholarship in Reproductive and Sexual Health Law at the Faculty of Law, University of Toronto (2005-2006), which was funded by the Open Society Institute. I would also like to thank the Foreign and Commonwealth Oce (the United Kingdom) for granting me the Chevening Scholarship (2007) and the School of Law, Queen Mary, University of London, where as a visiting researcher I completed this article. 1) Pichon and Sajous v. France (2001), App. No. 49853/99, Eur. Ct. H.R. 2001-X, decision on admissibility, [Pichon and Sajous].
Koninklijke Brill NV, Leiden, 2008 DOI: 10.1163/092902708X300172
A. Lamakov / European Journal of Health Law 15 (2008) 7-43
contraception to three female customers. The Court declared the case inadmissible, concluding that the pharmacists refusal to sell contraceptives did not fall within the scope of the right to manifest a religion and belief. At the same time, the Court emphasized that the pharmacists could not give priority to their personal beliefs over their professional obligations as long as the sale of contraceptive is legal and occurs on medical prescription nowhere other than in a pharmacy.2 The Courts conclusion is signicant when considered in terms of recent European debates on multiculturalism and religious tolerance. The present article, however, will focus on its implications for womens human rights in the reproductive health care context. The states have an obligation to ensure that all women have timely access to legally available reproductive health services.3 In practice, this means eliminating any barriers to womens access to reproductive health care. While the Courts conclusion on the primacy of professionalism over personal convictions in the health care context is certainly positive from a womens human rights perspective, the Court should have elaborated further on its reasoning. First, the Court failed to fully address why conscientious objection cannot be recognized as a form of manifestation of ones beliefs under Article 9(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms4 (freedom of thought, conscience and religion). Second, while the Court provided some direction on the matter of when pharmacists can be prohibited from refusing to dispense contraception, it missed an opportunity to provide a fully reasoned conclusion as to why pharmacists cannot allow their personal convictions to supersede their professional duties. Recent developments (in particular in certain European countries) have demonstrated that conscientious objection in health care arises most often in cases involving reproductive health services. Given that women are the primary users of these services, conscientious objection primarily interferes with womens access to health care, and in turn jeopardizes their eective enjoyment of rights and freedoms connected to sexual and reproductive health. This article argues that while conscientious objection as such could be recognized as a dimension of the right to manifest ones religion or belief, respect for womens rights and health needs requires restrictions on the exercise of conscientious objection in the reproductive health care context. Part 1 provides a brief overview of the opinions of some international and regional institutions on the issue of conscientious objection. Part 2 considers examples of legislation in selected
Ibid. at 4. UN, Committee on the Elimination of Discrimination against Women, General Recommendation No. 24, Women and Health (Article 12), (20th Sess. 1999) in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies U.N. Doc. HRI/GEN/1/Rev.7 (2004) at paras. 21, 23. [UN, CEDAW Committee, General Recommendation No. 24]. 4) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S.5. [the Convention].
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European states allowing for conscientious objection in reproductive health care. Part 3 analyses the Pichon and Sajous decision, arguing that the Courts recognition of the paramountcy of professionalism in health care is highly signicant. Despite this, the Court missed an opportunity to contextualize the need for restricting conscientious objection in the reproductive health care eld. This part analyses the fact scenario in Pichon and Sajous to demonstrate the burden that conscientious objection, in the reproductive health care context, places on womens enjoyment of their rights and freedoms. Finally, Part 4 addresses states international obligations to secure access to health care in conformity with professional standards. It concludes with a proposal on basic obligations that every state that provides for conscientious objection to reproductive health services should impose on objecting health practitioners.
1. The Approach of the United Nations and European Institutions toward Conscientious Objection Although there are no international human rights treaties that expressly guarantee a right to conscientious objection, the recent opinions of several international human rights bodies and experts suggest that conscientious objection can be considered a dimension of freedom of thought, conscience and religion protected by the major international human rights treaties. This interpretation is, however, generally limited to conscientious objection to military service. For instance, the UN Human Rights Committee (HRC) in its General Comment 22 relating to the right to freedom of thought, conscience and religion protected under Article 18 of the International Covenant on Civil and Political Rights (ICCPR)5 has explained that [t]he Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conict with the freedom of conscience and the rights to manifest ones religion or belief.6 Although the HRC limited its interpretation of conscientious objection to military service, a summary record to the draft process of General Comment 22 shows that some of its members supported a broader interpretation of Article 18, suggesting that
5) UN, Human Rights Committee, General Comment No. 22: The right to freedom of thought, conscience and religion (Article 18), (48th Sess. 1993), in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies U.N. Doc. HRI/GEN/1/Rev.7 (2004) [UN, HRC: General Comment No. 22]. Article 18(1) of the International Covenant on Civil and Political Rights [ICCPR] reads: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 6) UN, HRC: General Comment No. 22, ibid. at para. 11.
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this provision may incorporate a more general right to religious conscientious objection beyond the context of military service.7 The one UN treaty monitoring body that has discussed conscientious objection outside the area of military service is the Committee on the Elimination of Discrimination against Women (the CEDAW Committee). In its General Recommendation 24 related to Article 12 of the UN Convention on the Elimination of All Forms of Discrimination against Women8 (CEDAW), which guarantees women access to health care on an equal basis to men, the CEDAW Committee acknowledged that some state parties may have adopted conscientious objection clauses within the health care context. At the same time, the Committee emphasized that . . . if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.9 The European Parliament has adopted a similar approach, a recommendation to the EU Member States to secure a referral to non-objecting providers in cases of legitimate conscientious objections.10 Unfortunately, neither the CEDAW Committee nor the European Parliament elaborated further on the issue of the necessary restrictions that must be placed on the exercise of conscientious objection in the reproductive health care context. Specically, they could have suggested a range of fundamental measures to be adopted by states to ensure womens access to legal medical procedures and products is not jeopardized by providers objections.11 The EU Network of Independent Experts on Fundamental Rights concluded in one of its opinions that the right to religious conscientious objection should be seen as one dimension of the right to freedom of thought, conscience and religion recognized both under Article 9 of the European Convention on Human
7) Mr. Wennergren proposed that apart from conscientious objection to military service other kinds of conscientious objection should be addressed in the general comment to Article 18, namely the situations when state employees refuse to perform duties which are against their personal beliefs, including doctors called upon to perform abortions in state hospitals. Mr. Dimitrijevic argued that the more general aspects of matters of conscience were covered by paragraph 8 of the general comment, which explained that only justied restrictions might be applied. Therefore, he argued, [i]f for example a doctor had serious misgivings in following a particular procedure on grounds of conscience, his right to refuse could be restricted, if the Government saw t, on one of the grounds listed in article 18(3), i.e. public safety, order, health or morals. HRC, Summary record of the 1237th meeting, 19 July 1993, CCPR/C/SR.1237, paras. 25, 44. cited in European Union Network of Independent Experts on Fundamental Rights, Opinion No. 4-2005: The Right to Conscientious Objection and The Conclusion by EU Member States of Concordats with the Holy See, 14 December 2005, CFR-CDF.Opinion 4-2005.doc. at 16 [EU Network of Independent Experts, Opinion No. 4-2005]. 8) Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, Res. 34/180 (entered into force 3 September 1981) [CEDAW]. 9) UN, CEDAW Committee, General Recommendation No. 24, supra note 3 at para. 11. 10) EU, European Parliament, Resolution on sexual and reproductive health and rights (2001/2128 (INI)), 6 June 2002, A5-0223/2002 at 9. 11) This article considers such measures in greater detail below.
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Rights and under Article 18 of the International Covenant on Civil and Political Rights.12 The experts analyzed the issue of conscientious objection in connection with a draft Treaty between the Slovak Republic and the Holy See on the Right to Exercise the Objections of Conscience.13 If adopted, the treaty would provide for conscientious objections in areas such as health care, education, employment and the provision of legal services. While the experts seem to have agreed that conscientious objection can be recognized as an element of freedom of religion, they also emphasized the necessity to regulate the right to religious conscientious objection in order to ensure that the exercise of this right will not lead to others either being deprived of access to certain services in principle available to all in the State concerned, or being treated in a discriminatory fashion.14 The European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention)15 refers to conscientious objection only in Article 4(3)(b), which guarantees the right to be free from forced or compulsory labour.16 This article endorses the recognition of conscientious objection to military service by state parties. However, this does not imply that the Convention guarantees the right to conscientious objection to military service or to other duties. Indeed, the jurisprudence of the Commission and Court reveals that none of these bodies have interpreted the Convention as guaranteeing the right to conscientious objection as such.17 The provision under which applicants have often sought protection for conscientious objections is Article 9, which guarantees freedom of thought, conscience and religion. Under this provision:
(1) Everybody has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private to manifest his religion or belief, in worship, teaching, practice and observance. (2) Freedom to manifest ones religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health and morals, or for the protection of the rights and freedoms of others.
EU Network of Independent Experts, Opinion No. 4-2005, supra note 7 at 15. The Ministry of Justice of the Slovak Republic, The Draft Treaty between the Slovak Republic and the Holy See on the Right to Exercise the Objections of Conscience, May 2005. 14) EU Network of Independent Experts, Opinion No. 4-2005, supra note 7 at 20. 15) The Convention, supra note 4. 16) Article 4(3)(b) of the Convention, ibid., reads: (3) For the purposes of this Article the term forced or compulsory labour shall not include: [. . .] (b) any service of a military character or, in the case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service. 17) Pieter van Dijk & Godefridus J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed. (Hague: Kluwer Law International, 1998) at 545.
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It has been suggested that the Strasbourg organs have applied a rather restrictive concept of religious freedom when interpreting Article 9(1).18 As Carolyn Evans noted, while the term religion or belief has been interpreted quite extensively, this has been undermined by the narrow scope that has been given to the right to have and manifest a religion or belief .19 Although the Court and Commission have adopted a rather restrictive approach to the manifestation of a religion or belief under Article 9(1), they have generally left the states with wide discretion in the treatment of religion and belief under Article 9(2) which allows for legitimate limitations upon the manifestation of freedom of religion or belief.20 The Commission and the Court have applied this narrow reading of Article 9(1) in conscientious objection cases by refusing to nd that this provision guarantees the right to conscientious objection.21 Jeremy Gunn notes that:
[i]n such cases the Commission did not believe it necessary to determine whether the conscientious objectors were sincere or whether their governments might have had a legitimate basis for compelling the objectors to act against their will. The Commission simply found that no Article 9(1) right was implicated.22
Gunn further suggests that instead of rejecting the claim under Article 9, the Commission could have recognized that the applicants . . . beliefs and actions were within the scope of Article 9(1), and then [could have decided] whether the government could proscribe such conduct under 9(2) [. . .].23 He concludes that the Commission [. . .] narrowed the scope of Article 9 by driving the wedge not between acceptable and unacceptable forms of expression, but between religious beliefs and the actions that express those beliefs.24 While the Strasbourg organs did not interpret Article 9 as providing for the right to conscientious objection, the Commissions later case law indicates that
Carolyn Evans, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001) at 200. 19) Ibid. 20) Ibid. at 50, 200. 21) See e.g. X v. The Netherlands (1965), Eur. Comm. H.R., App. No. 2065/63, 8 Y.B. Eur. Conv. on H.R. 266 (Eur. Commn) (1965) (case related to paying compulsory insurance); X v. Austria (1965), App. No. 1753/63, Eur. Comm. H.R., 8 Y.B. Eur. Conv. H.R. 174 (case related to compulsory voting laws); Gottesmann v. Switzerland (1984), App. No. 10616/83, 40 Eur. Comm. H.R. Dec. & Rep. 284 (1984) (case related to making tax payments to churches); See also van Dijk & van Hoof, supra note 17 at 545. T. Jeremy Gunn, Adjudicating Rights of Conscience under the European Convention on Human Rights, in Johan D. van der Vyver and John Witte, Jr. (eds.), Religious Human Rights in Global Perspective: Legal Perspectives (Hague: Martinus Nijho Publishers, 1996) 305-30, [Gunn, Adjudicating Rights of Conscience] at 311. 22) Gunn: Adjudicating Rights of Conscience, ibid. at 313-4. 23) Ibid. at 314. Gunn discusses the Arrowsmith case. Arrowsmith v. the United Kingdom (1978), App. No. 7050/75, Eur.Comm.H.R., 3 E.H.H.R. 218. Pat Arrowsmith was a pacist who claimed a violation of Article 9 of the Convention because she was prohibited from distributing leaets that advocated a pacist view against British troops serving in Northern Ireland. 24) Ibid. at 314.
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conscientious objection to military service can be seen as a dimension of the right to freedom of thought, conscience and religion. This was suggested in Thlimmenos v. Greece,25 where the Commission indicated that the applicants refusal to serve in the military on the ground of his religious beliefs fell within the scope of Article 9(1), stating that the original conviction amounted to an interference with his right to manifest his religion.26 At the same time, the Commission did not examine whether the applicants original conviction was justied under Article 9(2) of the Convention.27 As a result, the scope of Article 9 and the legal status of conscientious objection within the European human rights system have remained unclear. In contrast, some commentators note that the Commissions treatment of conscientious objection cases before the 1970s diered from its later case law.28 These earlier cases related primarily to conscientious refusals to perform legal duties such as paying social security or compulsory insurance premiums.29 Pieter van Dijk and Godefridus van Hoof have observed that in these decisions the Commission seems to [have] held the view that Article 9 also guarantees the right to act according to conscience.30 Instead of rejecting the claims as being outside the scope of Article 9(1), the Commission concluded that there had been no violation under the second paragraph of this Article, nding that the challenged duties pursued legitimate aims listed in this provision.31 The analysis of Pichon and Sajous v. France provided in this article will apply this approach. It will argue that the applicants conscientious objections could have been recognized as a manifestation of their religious beliefs under the rst paragraph of Article 9 and will then examine whether the interference with the applicants right to manifest their religion was justied under the second paragraph of Article 9.
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Thlimmenos v. Greece (1998), App. No. 34369/97, Eur. Comm.H.R. (report). This case centered on the fact that Mr. Thlimmenos had not been appointed as a chartered accountant as a result of his previous conviction for refusing to enlist in the armed forces because it contravened his religious beliefs. As a consequence, he complained that the refusal to appoint him as a chartered accountant resulted in a breach of Article 9. In addition, he claimed a violation of his right to non-discrimination (Article 14) in conjunction with his freedom of religion (Article 9) as a result of his original conviction for refusing to enlist in the military. The Commission found a violation of Article 9 in conjunction with Article 14 and held that it would be unnecessary to decide on whether there was a violation of Article 9 itself. At paras. 36, 51-2. 26) Ibid. at paras. 45-6. 27) Ibid. at para. 46. The applicant did not challenge the original conviction, but only the refusal of the authorities to appoint him to a post of chartered accountant. While neither the Commission nor the Court interpreted Article 9 as providing for the right to conscientious objection, they accepted that conscientious objection to military service falls within the scope of Article 9. However, they reached this conclusion only in cases where applicants claimed a violation of Article 9 in conjunction with Article 14. 28) van Dijk & van Hoof, supra note 17 at 543. 29) Ibid. citing Reformed Church of X v. the Netherlands, App. 1497/62, Yearbook V (1962), p. 286 (297); X v. the Netherlands, Yearbook X (1967), p. 472 (476). 30) Ibid. 31) Ibid.
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2. National Legislative Frameworks Regarding Conscientious Objection in Europe Most European states have traditionally recognized the right to conscientious objection to compulsory military service as an aspect of freedom of thought, conscience and religion. The approach to conscientious objection varies, however, in professional spheres such as health care. Some European states provide health professionals with a right to refuse to perform certain medical procedures, with most of these procedures being reproductive health services that only women need. Great Britain, France, Belgium, Norway, Austria, Hungary, Slovakia, Poland, Portugal and Italy all allow health professionals to object to performing abortions under specic circumstances.32 In Norway, for example, health personnel may refuse to perform or assist in abortion procedures under the Norwegian Abortion Act.33 The objecting practitioner must give written notication of such a wish, together with a more detailed explanation, to the administrative head of the hospital/institution.34 This right applies specically to personnel directly involved with the procedure; excluding the nursing, treatment, or care of women before or after an abortion. In addition, the Act places an obligation on the hospital/institution to notify the county municipality as to the number of conscientious objectors on a quarterly basis. This notication must also include the number of non-objecting health personnel. The county municipality is responsible for organizing hospital services in such a way that women in their area can have a pregnancy terminated at any time. For that purpose the municipality can make non-objecting status a condition of employment when advertising vacant hospital/institution positions. In addition, health personnel who apply for positions at hospitals/institutions where pregnancy terminations may be performed shall, on request, make it known whether they wish to be exempted from performing or assisting in pregnancy terminations.35 The United Kingdom Abortion Act 1967,36 provides the regulation of conscientious objection in section 4 according to which:
(1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:
32) For detailed overview of the European Union Member States that provide for conscientious objection in health care see EU Network of Independent Experts, Opinion No. 4-2005, supra note 7 at 8-14. 33) Act concerning Termination of Pregnancy, 13 June 1975 (No. 50) with Amendments in the Act dated 16 June 1978 (No. 5, No. 66) (Norway), s. 20. 34) Ibid. 35) Ibid. 36) UK Statutes 1967, ch. 87 as amended, cited in Rebecca J. Cook, Bernard M. Dickens and Mahmoud F. Fathalla, Reproductive Health and Human Rights, Integrating Medicine, Ethics and Law (New York: Oxford University Press, 2003) at 214.
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Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it. (2) Nothing in subsection (1) of this section shall aect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.
With respect to other reproductive health care services, a few states (i.e. Austria, United Kingdom, and Italy) recognize the right to conscientious objection to assisted reproduction.37 Furthermore, the British Medical Association (BMA) allows doctors to object to prescribing contraception. Such physicians must refer the patient to a non-objecting provider.38 In addition, some regions of Spain have adopted laws that enable pharmacists to refuse to fulll their duties on the ground of conscience unless the objection threatens the patients rights or health.39 Slovakia has a general provision on conscientious objection that allows health professionals to refuse to perform any medical procedure which goes against their conscience.40 These trends in many European countries suggest that conscientious objection in health care is increasingly recognized as an expression of the right to freedom of religion, belief and conscience. At the same time, the manifestation of this right is not absolute.41 Not only do these countries vary in the scope of their conscientious objection clauses, they also dier in terms of the limits they impose on the exercise of these objections. In general, objecting providers are obliged to perform the relevant procedure in any emergency situation. Some states also impose other obligations such as referral to a non-objecting practitioner or the provision of information to the patient about all available alternative services. The specic regulation of these measures varies from country to country, with most countries lacking sucient legal safeguards to ensure timely and easy access to health care services.
EU Network of Independent Experts, Opinion No. 4-2005, supra note 7 at 9-14. Ibid. at 14. 39) Ley De Cantabria 7/2001, De 19 De Diciembre, De Ordenacin Farmacutica De Cantabria. Ley 8/1998, de 16 de junio, de Ordenacin Farmacutica de la Comunidad Autnoma de La Rioja. See also ibid. at 13. 40) The Slovak Ethical Code of the Health Practitioner allows health practitioners (physicians, nurses, pharmacists, medical assistants, etc.) to refuse to perform or participate in a medical procedure that is against their conscience with the exception of the direct endangerment of the life or health of persons. If a health practitioner has a conscientious objection to certain products or services, he/she must inform his/her employer of this and also his/her patients if invoking conscientious objection in the context of the provision of health care. Ethical Code of the Health Practitioner, Annex No. 4 to the Act on Health Care Providers, Health Practitioners and Professional Health Care Organizations, No. 578/2004 Coll. as amended. 41) EU Network of Independent Experts, Opinion No. 4-2005, supra note 7 at 16.
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3. An Analysis of Pichon and Sajous v. France In Pichon and Sajous v. France,42 two pharmacists claimed that their right to freedom of religion under Article 9 of the Convention had been violated as a result of their conviction for refusing to sell contraceptives to three women. The pharmacists claimed that their conscientious objection was grounded in their freedom of religion. The Court concluded that the conviction of the pharmacists for refusing to provide a legal health service did not fall within the scope of Article 9 and thus it declared the application inadmissible.43 By declaring the application inadmissible, the Court rearmed the position that the right claimed by the applicants does not fall within Article 9. Unfortunately, the Court provided very little reasoning for this conclusion. It mainly reiterated the holdings of previous decisions without engaging in a more detailed analysis as to why the pharmacists were not allowed to refuse to sell contraceptives. Similar to the previous case law, the Court distinguished between beliefs and actions expressing those beliefs, rather than drawing a line between acceptable and unacceptable ways in which beliefs might be manifested.44 In Pichon and Sajous the Court reiterated that Article 9 mainly protects personal convictions and religious beliefs that may also be referred to as matters of individual conscience, sometimes called forum internum.45 The Court further explained that Article 9 also protects acts that are closely connected to personal conscience.46 Out of these acts the Court enumerated . . . acts of worship or devotion forming part of the practice of a religion or belief in a generally accepted form.47 It then turned to the issue of manifestations of religion or belief, listing the forms of expression stated in Article 9(1) namely worship, teaching, practice and observance. As it explained further . . . Article 9 of the Convention does not always guarantee the right to behave in public in a manner governed by that belief.48 To support this claim the Court emphasised that the term practice . . . does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief.49 Applying this reasoning, the Court concluded 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 justication for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.50 Pichon and Sajous, supra note 1. Ibid. at 4. 44) Gunn, Adjudicating Rights of Conscience, supra note 21 at 314. 45) Pichon and Sajous, supra note 1 at 4. For debate about forum internum in the Courts jurisprudence, see e.g. Evans, supra note 18 at 72-4. Evans explains that the Court applies this term without closer specication of its scope. 46) Pichon and Sajous, ibid. 47) Ibid. 48) Ibid. 49) Ibid. 50) Ibid.
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The Courts scant reasoning in Pichon and Sajous indicates some reluctance to engage comprehensively with conscientious objection claims under this Article. Instead of accepting the pharmacists religious refusals as a manifestation of their religion under Article 9(1) and then deciding whether the states interference with this manifestation was justied under Article 9(2),51 the Court rejected the claim as not falling within the ambit of Article 9. However, the latter part of the reasoning suggests the Courts attempt to demarcate the limits of the pharmacists right to manifest their personal beliefs in a professional sphere. A critical question surrounding the recognition of conscientious objection as a manifestation of ones religion or belief seems to be the distinction between conscientious objections to compulsory duties such as military service and refusals to carry out duties related to employment. Herein lies a considerable dierence grounded in the aspect of choice. The Strasbourg organs have refused to nd a violation of the right to freedom of religion in cases where the complainant voluntarily accepted employment.52 For example, in X. v. the United Kingdom53 the Commission held that a Muslim schoolteachers right to manifest his freedom of religion was not infringed as he voluntarily accepted the employment contract without any religious objections.54 In that case, the Commission focused its attention on the centrality of the contract.55 It suggested that the complainant was free to change his situation by leaving the job if it was in conict with his conscience.56 Yet as Gerard Quinn has argued, an insistence on the centrality of the contract places the objector in a dilemma. Such a person is forced to either accept a contract and be constrained by its terms, which also frame the scope of any right to exercise conscientious objection; or he or she can reject the terms of the contract, which may result in the objector losing a job opportunity.57 Cases of conscientious objection in the context of voluntarily-accepted positions are not easy to resolve. On the one hand, an individual has a fundamental right to freedom of thought, conscience, and religion. On the other hand, by choosing a particular profession, a person is expected to accept certain professional rules and codes of conduct. In the health care context, these professional
51) Article 9(2) of the Convention, supra note 4, reads: Freedom to manifest ones religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health and morals, or for the protection of the rights and freedoms of others. 52) See e.g. X. v. the United Kingdom (1981), App. No. 8160/78, 22 D&R 27 [X. v. UK ]; Karaduman v. Turkey (1993), App. No. 16278/90, Eur. Comm. H.R., D.R. 74; Kalac v. Turkey (1997), 41 Eur. Ct. H.R. (ser. A) 1199. 53) X. v. UK , ibid. 54) Ibid. at paras. 9, 14. 55) Gerard Quinn, Scope and limits of conscientious objections: Conscientious objection in labour relations (civil service and liberal professions), in Council of Europe, Freedom of Conscience (Strasbourg: Council of Europe Press, 1993) 107-22, [Quinn, Scope and limits of conscientious objections] at 116-9. See also X. v. Denmark (1976), Eur. Comm. H.R., 5 D&R 157. 56) Evans, supra note 18 at 130-31. 57) Quinn, Scope and limits of conscientious objections, supra note 55 at 117. See also Evans, ibid. at 131.
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standards are directed towards providing health care while at the same time respecting patients autonomy and rights, and securing their well-being. Therefore, if an exercise of a conscientious objection in the health care sector is to be allowed, a balance must be struck between these competing interests. The state must ensure that the rights and freedoms of individuals receiving health care are not jeopardized by health professionals refusals to perform or assist in legal health care services due to their own personal beliefs. In its analysis in Pichon and Sajous, the Court seemed to adopt, to a limited degree, a balancing approach when it explained that the French pharmacists could not refuse to sell contraception due to their religious beliefs as long as its sale is legal in the country and available upon prescription only in a pharmacy. Unfortunately, the Court did not elaborate further on this statement to provide a comprehensive explanation as to why the conscientious objections of the pharmacists could not be accommodated. Such an analysis would have been extremely useful in terms of unifying the regulation of conscientious objection to health services in European states. Had the Court undertaken a fuller analysis of the conscientious objection claim under Article 9(2), it would have been able to outline the minimum requirements necessary for the accommodation of conscientious objection balanced against the rights and freedoms of aected individuals, in this particular case women and girls. The Court could provide a rational and fair basis for balancing these competing interests through the application of a proportionality analysis. The principle of proportionality has been widely recognized as a method of conducting judicial review that seems to provide the most objective analysis of peoples subjective preferences.58 David Beatty explains that the proportionality principle transforms conicts into matters of fact. By relying on the facts, the proportionality principle allows judges [. . .] to supervise a discourse in which each persons perception of a states course of action is valued equally and for which there is a correct resolution that can be veried empirically.59 Proportionality resolves conicts between fundamentally dierent ideas and interests in a way that demonstrates equal concern and respect for everybody involved.60 The Strasbourg organs generally applied the principle of proportionality when evaluating whether a governments interference with certain rights or freedoms, set forth in the Convention, was justied. The Convention provides for the legitimate restrictions of several rights including the right to respect for private and family life, the right to freedom of thought, conscience and religion, the right to information, and the right of association. A state can restrict these rights as long
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David M. Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) at 171-2. Ibid. at 171. According to Beatty the principle of proportionality provides for the most objective and integral model of judicial review. It enables the judges to focus on the conicts as matters of fact, rather than matters of interpretation, or matters of moral principle. at 171. 60) Ibid. at 169, 173.
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as it is done in a manner that is compatible with the conditions set out in the limitation clauses (the second paragraphs of the relevant provisions). These requirements are divided into three standards that the Court assesses when reviewing whether a restriction is justied.61 Firstly, the Court scrutinizes the lawfulness of the interference.62 In other words, the restriction must be prescribed by law. The Court has interpreted this requirement as including written as well as unwritten rules.63 Moreover, such a law must be unambiguous and apparent, so as to enable individuals to regulate their behaviour and to foresee, to a reasonable degree, the consequences of their actions.64 Secondly, if the Court nds the restriction to be lawful, it continues by analysing whether the interference pursued a legitimate aim. Each provision that allows for the limitation of a right enumerates these aims exhaustively. Lastly, if the Court nds that the interference pursued at least one of these legitimate interests, it then evaluates the necessity of the restriction in a democratic society.65 The interference will only be deemed permissible if it complies with all three standards.66 Had the Court in Pichon and Sajous found conscientious objection to be within the scope of Article 9(1) it would have had to then examine whether the French governments interference with the pharmacists right to manifest their religion was justied under Article 9(2). In other words, the state would have to demonstrate the existence of legitimate reasons for limiting religious freedom.67 Using Beattys theory about the ability of the proportionality principle to resolve competing interests, the Court would have been able to provide a decision which would balance the importance of the pharmacists conscientious objections against conicting social goods, and thus give equal concern and respect to all individuals involved. The following section applies the aforementioned standards: (a) prescribed by law; (b) legitimate aim pursued, and (c) necessary in a democratic society to Pichon and Sajous; in order to examine the impact of conscientious refusals on womens enjoyment of their rights related to reproductive health.
61) Pieter van Dijk, Fried van Hoof, Arjen van Rijn, Leo Zwaak (eds.), Theory and Practice of the European Convention on Human Rights, 4th ed. (AntwerpenOxford: Intersentia, 2006) at 333-42. 62) Leyla Sahin v. Turkey (2004, 2005), App. No. 44774/98, Eur. Ct.H.R. 299 [Sahin] at paras. 84-98. 63) See e.g. Sunday Times v. the United Kingdom (1979), 30 Eur. Ct. H.R. (Ser. A); Casado Coca v. Spain (1994), 285-A Eur. Ct. H.R. (Ser. A); Sahin, ibid. 64) Sahin, ibid. at paras. 88, 91. The Court by referring to its previous jurisprudence stated that [l]aw must be understood to include both statutory law and judge-made law. at para. 88. The Court further explained that the scope of the notion of forseeability depends to a considerable degree on the content of the instrument in question, the eld it is designed to cover and the number and status of those to whom it is addressed. at para. 91; see also at para. 84. 65) Sahin, ibid. Case of Refah Partisi (The Welfare Party) and Others v. Turkey (2003), App. Nos. 41340/98, 41342/98, 41343/98 and 41344/98, Eur. Ct. H.R., CEDH/ECHR 2003-II [Refah Partisi], Dahlab v. Switzerland (2001), App. No. 42393/98, Eur. Ct.H.R., CEDH/ECHR 2001-V [Dahlab]. 66) Lindholm, Tore, Comments on the Case of Leyla Sahin v. Turkey: Political and Public Morality Aspects, Conference paper, The Strasbourg Conference: A Forum on Freedom of Religion or Belief (2005), online: Strasbourg Conference <http://www.strasbourgconference.org> (date accessed: April 2006). 67) Evans, supra note 18 at 208.
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3.1. Prescribed by Law Any limitation on the right to manifest ones religion or belief must be prescribed by law.68 According to the Pichon and Sajous decision, there was no legislation in France that would allow pharmacists to refuse to sell contraceptives for religious or ethical reasons. This was conrmed by the French courts that concluded that religious or ethical grounds are not legitimate reasons to refuse to sell products such as contraceptives. The domestic courts relied on the Consumer Code according to which [i]t is prohibited to refuse to sell a product or provide a service to a customer for no legitimate reason . . ..69 According to the Bordeaux Court of Appeal, religious convictions which led the pharmacists to refuse to sell contraceptives cannot be interpreted as a legitimate reason within the meaning of the relevant provision of the Consumer Code.70 The pharmacists based their claim on the Public Health Code arguing that this Code did not require them to supply contraceptives. Under Article L 645 of the Code, the sale of medicines or substances, intra-uterine probes or other similar objects capable of causing or facilitating abortion without a prescription was prohibited.71 The provision allowed for the sale of such medicines, substances and objects, provided that they were medically prescribed and the prescription was transcribed into a numbered registry initialled by the mayor or the police superintendent.72 In any event, the domestic courts concluded that this provision applies only to abortifacients and not to contraceptives. Therefore, neither the Consumer Code nor the Public Health Code allowed pharmacists to refuse to supply contraceptives due to religious beliefs. Thus, it could be concluded that the pharmacists conviction for refusing to sell contraception was according to law. 3.2. Legitimate Aim Pursued After nding the interference with a right to manifest ones religion or beliefs to be in compliance with the law, the Court generally moves to an examination of whether it pursues a legitimate aim.73 Article 9(2) of the Convention enumerates what constitutes a legitimate aim, namely public safety, protection of public order, health or morals, or protection of the rights and freedoms of others. The Courts Article 9 jurisprudence indicates that expressions of religion and belief must not interfere with the rights and freedoms of others. This requirement seems to be applied most often in cases where there is a balancing between an
68) 69) 70) 71) 72) 73)
Refah Partisi, supra note 65, Dahlab, supra note 65, Sahin supra note 62. Pichon and Sajous, supra note 1 at 2. Ibid. Pichon and Sajous, supra note 1 at 3. Ibid. See e.g. Dahlab, supra note 65, Sahin, supra note 62.
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Article 9 right and other entitlements guaranteed by the Convention.74 While the Court has referred to the aim of protecting the rights and freedoms of others under this second standard, it seems to be generally reluctant to engage in an open analysis as to how these entitlements are aected.75 Rather, it often merely states that the restriction is justied for the protection of the rights and freedoms of others, and assesses this standard in conjunction with the third standard, necessary in a democratic society in particular under the proportionality analysis.76 3.3. Necessary in a Democratic Society Under the standard necessary in a democratic society the state is required to show whether the restrictions placed on the right to manifest ones freedom of religion or beliefs are justied and proportionate to the aim pursued.77 In order to justify this interference the state is required to demonstrate a pressing social need that led to the limitation of a particular right.78 The refusal to sell contraceptives (or to provide other reproductive health services) imposes signicant obstacles, in some cases completely undermining womens enjoyment of human rights and freedoms protected by the Convention and other international human rights instruments, including the CEDAW, the International Covenant on Economic, Social and Cultural Rights79 (ICESCR), the Convention on the Rights of the Child80 (CRC), the Beijing Declaration and Platform for Action of the Fourth World Conference on Women (1995)81 and the Programme of Action of the United Nations International Conference on Population and Development (1994).82 Although the European Convention does not expressly guarantee the right to reproductive and sexual health, it does guarantee human rights and freedoms closely connected with reproductive interests.83 As Rebecca Cook has noted, human rights
See e.g. ibid. Evans, supra note 18 at 147-9. 76) See e.g. van Dijk, van Hoof, van Rijn & Zwaak, supra note 61, at 340. 77) See e.g. Sahin, supra note 62 at para. 117. 78) See e.g. ibid. at para. 115. 79) International Covenant on Economic, Social and Cultural Rights, 16 December 1966, G.A. Res. 2200A (XXI) (entered into force 3 January 1976) [ICESCR]. 80) Convention on the Rights of the Child, 20 November 1989, G.A. Res. 44/25 (entered into force 2 September 1990) [CRC]. 81) Beijing Declaration and Platform for Action of the Fourth World Conference on Women, 17 October 1995, UN Doc A/CONF. 177/20. 82) UN, Population and Development, i. Programme of Action adopted at the International Conference on Population and Development, Cairo, 5-13 September 1994 (New York: United Nations, Department for Economic and Social Information and Policy Analysis, ST/ESA/SER.A/149, 1994). [ICPD Programme of Action]. 83) Human rights and fundamental freedoms guaranteed by the European Convention that engage sexual and reproductive interests include the right to life (Article 2), the right to be free from torture, inhuman or degrading treatment or punishment (Article 3), the right to liberty and security (Article 5), the right to respect for private and family life (Article 8), freedom of thought, conscience and religion (Article 9),
75) 74)
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and freedoms can be classied according to the reproductive interests they engage and are clustered around.84 The level of fullment of these interests, including reproductive security and sexuality, reproductive health, reproductive equality, and reproductive decision-making, signicantly inuence an individuals welfare.85 Thus, the eective protection and respect of human rights and freedoms related to reproduction and sexuality is crucial to the human dignity and well-being of each person. This applies particularly to women as they are the major users of these services, and the only group that is systematically prevented from the full enjoyment of these rights. Therefore, safeguarding womens human rights and welfare represents a pressing social need, that justies measures being taken to restrict conscientious objection in the reproductive health care context. When examining the impact of conscientious objection on the enjoyment of womens rights and freedoms, a feminist legal analysis is useful.86 This analysis can help to reveal the unequal burdens that conscientious refusals in the reproductive health care context impose on women. Feminist legal analysis consists of methods such as asking the woman question, feminist legal reasoning, and consciousness-raising. As Katharine Bartlett explains, the woman question asks what the gender implications of laws are.87 How do these laws impact men and women and dierent groups of women? The woman question helps uncover gender bias, and to reach a decision in the case that is defensible in light of that bias.88 Bartlett describes feminist practical reasoning as a method that:
. . . approaches problems not as dichotomized conicts, but as dilemmas with multiple perspectives, contradictions, and inconsistencies. These dilemmas, ideally, do not call for the choice of one principle over another, but rather imaginative integrations and reconciliations, which require attention to particular context.89
The last method, consciousness-raising, provides a substructure for other feminist methods [. . .] by enabling feminists to draw insights and perceptions from their own experiences and those of other women and to use these insights to challenge dominant versions of social reality.90
freedom of expression (Article 10), freedom of association (Article 11), the right to marry (Article 12), the right to non-discrimination (Article 14 and Protocol 12), and the right to education (Protocol 1 Article 2). 84) Rebecca J. Cook, Human Rights and Reproductive Self-Determination (1994-1995) 44 Am. U.L. Rev. 975 at 979 [Cook: Human Rights and Reproductive Self-Determination]. 85) Ibid. 86) Katharine T. Bartlett, Feminist Legal Methods (1989-1990) 103 Harv. L. Rev. 829 [Bartlett, Feminist Legal Methods]. For detailed analysis of the application of the feminist legal methods on the issue of pharmacists conscientious objections see Claire A. Smearman, Drawing the Line: The Legal, Ethical and Public Policy Implications of Refusal Clauses for Pharmacists (2006) 48 Ariz. L. Rev. 469 at 492-507 [Smearman, Drawing the Line]. 87) Bartlett, Feminist Legal Methods, ibid. at 837. 88) Ibid. at 846. 89) Ibid. at 851. 90) Ibid. at 866. See also Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989) at 83-105.
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The application of feminist legal methods to assess the impact of conscientious objection in the reproductive health care context enables one to identify the injustices that women experience as a result of practitioners objections. These methods help to reveal womens practical experiences in accessing reproductive health services. In addition, reliance on the factual context and an explicit recognition of all interests involved, including the objectors interests, makes feminist practical reasoning close to the proportionality analysis outlined above. Both methods try to resolve conicts between dierent interests in a manner that demonstrate[s] respect for everybody involved.91 Moreover, feminist practical reasoning has the potential to identify how a law or policy aects women from dierent social, legal, and cultural contexts. In other words, it recognizes the disparate impacts of laws and policies on women of dierent classes, races, ethnic origins, sexual orientations, ages, and other groups. In the conscientious objection context, feminist practical reasoning reveals the burdens that practitioners refusals place on women in general, and women from dierent social groups in particular. As the following analysis demonstrates, feminist legal reasoning can also reveal the extent to which womens rights and freedoms may be jeopardized by the abusive exercise of conscientious objection. While a broader range of rights and freedoms may be threatened by practitioners refusals, this article limits its analysis to those human rights guaranteed in the Convention which are engaged when women do not have timely and appropriate access to contraceptive devices. These rights include the right to non-discrimination and equality, the right to respect for private and family life, the right to liberty and security, freedom to receive and impart information, and freedom of thought, conscience and religion. 3.3.1. Right to Non-discrimination and Equality The right to non-discrimination on the grounds of sex and gender is guaranteed by every major international and regional human rights treaty, including the European Convention on Human Rights. Article 14 of the Convention states:
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Article 14 is not a freestanding, independent right under the Convention.92 An Article 14 violation can only be claimed in conjunction with another substantive right guaranteed by the Convention. While the Convention does not explicitly
Beatty, supra note 58 at 169, 173; Bartlett, Feminist Legal Methods, ibid. at 861. Council of Europe, Explanatory report to Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 177, online: Council of Europe <http://conventions.coe. int/treaty/en/Reports/Html/177.htm> (date accessed: 30 July 2006) [Council of Europe, Explanatory report].
92) 91)
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guarantee a right of access to reproductive health services, sex/gender discrimination in accessing such services may be claimed under the Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Protocol).93 The Protocol provides a general non-discrimination clause,94 which states [t]he enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, color, [. . .] or other status.95 Under the Protocol individuals can claim a violation of their right to nondiscrimination in relation to any right guaranteed by national law. The term law may also include international law.96 Therefore, where a state has, for example, ratied the CEDAW and incorporated it into its domestic law, it may be possible for a woman to claim a violation of her Article 12 and Article 16 rights in this context. Article 12 guarantees a right to access, on the basis of equality between men and women, health care services including those related to family planning. Article 16 imposes an obligation on states to ensure, on the basis of gender equality, [t]he same rights to decide freely and responsibly on the number and spacing of their children and to have access to information, education and means to enable them to exercise these rights.97 If domestic legislation provides for a right to access reproductive health services, a woman may seek redress at the Court for being discriminated against if she is prevented from accessing those services. Equality in reproductive health care requires not only . . . treating equal eligibility equally, but also of reacting appropriately to biological and physiological dierences between the sexes [. . .].98 While dierentiation based on sex is generally unacceptable in areas like education, employment or housing, sex needs to be taken into consideration in achieving gender equality in health matters.99 The CEDAW Committee used the dierence approach in its General Recommendation on Women and Health, where it asked state parties to explain how their health policies addressed certain distinctive factors such as biological, socio-economic, psychosocial and health system factors which have a dierent impact on womens, in comparison to mens, health.100
Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms was opened for signature on 4 November 2000. It entered into force on 1 April 2005. Total number of ratications as of 29 February 2008: 16 states. [Protocol No. 12]. 94) Council of Europe, Explanatory report, supra note 92 at para. 21. 95) Article 1(1) of the Protocol No. 12, supra note 93. 96) However, as the Explanatory report explains the fact that the term law includes international law . . . does not mean that this provision entails jurisdiction for the European Court of Human Rights to examine compliance with rules of law in other international instruments., supra note 92 at para. 29. 97) The CEDAW, supra note 8, Article 16(1)(e). 98) Rebecca J. Cook, Exploring fairness in health care reform (2004) Journal for Juridical Science 29(3): 1-27 at 22. 99) See generally Lesley Doyal, Gender equity in health: debates and dilemmas (2000) Social Science & Medicine 51 931-939, at 933 [Doyal, Gender equity in health]. 100) UN, CEDAW Committee, General Recommendation No. 24, supra note 3 at para. 12.
93)
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Similarly, equality guaranteed under Article 14 of the Convention has been interpreted as not merely including formal equality based on the principle of treating persons in similar situations alike, but also substantive equality which can require treating dierently situated persons dierently.101 This approach was evident in Thlimmenos v. Greece 102 where the Court explained that discrimination can also arise when [s]tates treat dierently persons in analogous situations without providing an objective and reasonable justication [. . .], or when States without an objective and reasonable justication fail to treat dierently persons whose situations are signicantly dierent.103 Gender and sex inequality in reproductive health matters is demonstrated by the obstacles that women often face in obtaining reproductive health procedures and products. For example, oral contraceptives that only women use are generally available only in pharmacies, and with a prescription from a physician. However, men can purchase condoms over-the-counter in various places, ranging from drugstores to supermarkets. Likewise, in a few European countries, including Poland and Ireland, access to abortion is very restricted. This continues despite the numerous criticisms by international human rights bodies and the reality of a high number of clandestine abortions.104 For instance, in Poland, 50000 to 70000 illegal abortions occur every year according to Polish government representatives.105 However, the real number is likely signicantly higher, ranging from somewhere between 80000 to 200000 every year.106 The criminal prohibition and regulatory restriction of health services that only women need fails to account for the physiological dierences between men and women, and therefore violates womens substantive equality rights. As Rebecca Cook notes, [r]eproductive equality would bring into question restrictive abortion laws, because these laws criminalize medical procedures that only women need. Men are not subjected to
101) See e.g. UN, Committee on the Elimination of Discrimination against Women, General Recommendation No. 25, temporary special measures (Article 4(1)), (30th Sess. 2004) in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies U.N. Doc. HRI/ GEN/1/Rev.7 (2004). 102) Thlimmenos v. Greece (2000), App. No. 34369/97, Eur. Ct. H. R., CEDH/ECHR 2000-IV. 103) Ibid. at para. 44. 104) See e.g. Eileen V. Fegan and Rachel Rebouche, Northern Irelands Abortion Law: The Morality of Silence and The Censure of Agency (2003) Feminist Legal Studies 11: 221-254 (Discusses the ineectiveness of the Northern Irish abortion law and ignorance of womens agency in the legal and cultural debate around abortion in Northern Ireland.); Siobhn Mullally, Debating Reproductive Rights in Ireland (2005) Human Rights Quarterly 27 at 78-104 (Mullally examines the struggle for reproductive autonomy within the context of the abortion debate in Ireland, where reproductive rights have often been portrayed as hostile to cultural and national sovereignty.); Polish Federation for Woman and Family Planning, The anti-abortion act in Poland, The Functioning, Social Consequences, Attitudes and Behaviours (Warsaw: PFWFP, September 2000), online: PFWFP <http://www.federa.org.pl/publikacje/raporty/ aborcja2000/index.htm> cited in EU Network of Independent Experts, Opinion No. 4-2005, supra note 7 at 18 [Polish Federation for Woman and Family Planning: The anti-abortion act in Poland]. 105) EU Network of Independent Experts, Opinion No. 4-2005, ibid. 106) Polish Federation for Woman and Family Planning, The anti-abortion act in Poland, supra note 104.
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criminal sanctions for procedures that are necessary for the preservation of any aspect of their health.107 Despite the fact that the European Convention does not include an express right to reproductive health care, there are still several Convention rights that engage reproductive interests, which women could invoke in conjunction with an Article 14 non-discrimination claim.108 For example, womens right to life, right to be free from inhuman and degrading treatment, right to respect for private life, right to liberty and security, and right to information, freedom of thought, conscience and religion are jeopardized more often than mens in the sexual and reproductive health care context. In other words, men are not prevented from accessing services that are critical to their reproductive and health choices to nearly the extent that women are.109 The CEDAW Committee has found that states refusals to legally provide for the performance of certain reproductive health services for women, constitutes discrimination against women.110 As Lesley Doyal has accurately expressed, [m]en do not need reproductive health services in the same way as women do.111 That does not mean, as she further explains, that men cannot claim special needs for the improvement of their health.112 Rather, it illustrates that womens reproductive and sexual interests inuenced by the legitimate purpose of living a complete life that respect their rights and freedoms must be considered seriously when designing health care policies. Gender equity and equality in health matters will not be achieved if the needs of half of the population remain ignored. 3.3.2. Right to Respect for Private and Family Life The right to respect for private and family life is guaranteed under Article 8 of the Convention. Under this provision the state has an obligation to ensure the eective respect of ones private life.113 This obligation includes not merely noninterference with ones privacy, but also places a positive obligation on the state to secure an eective respect for private life.114 This positive duty can involve the
Cook, Human Rights and Reproductive Self-determination supra note 84 at 1007. For identication of the Conventions substantive rights clustered around reproductive interests see supra note 83. 109) Open Door and Dublin Well Woman v. Ireland (1992), App. Nos. 14234/88, 14235/88, 246-A Eur. Ct. H.R. (Ser.A) [Open Door and Dublin Well Woman]. (The applicants, representatives of two Dublin womens health clinics, claimed gender discrimination in the enjoyment of the right to private life caused by the injunction that prohibited distribution of information on abortion available outside of the country. They based their claim on the fact that men were not denied information critical to their reproductive and health choices.) at para. 81. 110) UN, CEDAW Committee, General Recommendation No. 24, supra note 3 at para. 11. 111) Doyal, Gender equity in health, supra note 99 at 933. 112) Ibid. 113) Pretty v. the United Kingdom (2002), App. No. 2346/02, Eur.Ct.H.R., CEDH/ECHR 2002-III [Pretty]; Mikulic v. Croatia (2002), App. No. 53176/99, Eur.Ct.H.R., CEDH/ECHR 2001-I. 114) X. and Y. v.The Netherlands (1985), App. No. 00008978/80, 91 Eur. Ct. H.R. (Ser. A) at para. 23 [X. and Y.]; Tysic v. Poland (2007), App. No. 5410/03, Eur.Ct.H.R. at para. 110 [Tysic].
108) 107)
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adoption of specic measures and/or undertaking other steps aimed at protecting this human right. In addition, the duty applies to both spheres of relations relations between the state and individuals, and relations between individuals themselves.115 In the context of conscientious objection in reproductive health care it could be argued that the state has a positive obligation to adopt legal safeguards which will ensure respect for the private lives of those aected by refusals to provide a lawful service. The negative and positive state obligations owing from Article 8 encompass a wide range of elements considered part of private life. The Court and Commission have interpreted this term as comprising aspects of an individuals physical and social identity including the right to personal autonomy and personal development.116 Article 8 also includes the physical and psychological integrity of the person, including her sexual life.117 Sexual life is a central component of private life. It is shaped by the individuals sexuality and sexual health. Sexuality is a result of the interplay of biological, psychological, socio-economic, cultural, ethical and religious/spiritual factors.118 The World Health Organization (WHO) denes sexual health as being evidenced in the free and responsible expressions of sexual capabilities that foster harmonious personal and social wellness, enriching individual and social life, and [. . .] not merely the absence of dysfunction, disease and/or inrmity.119 Sexual health has also been addressed in the Programme of Action developed at the International Conference on Population and Development (ICPD)120 within the denition of reproductive health. This denition explains reproductive and sexual health beyond the traditional health framework. It identies reproductive and sexual health as also being a human rights and social matter.121 Contraception enables individuals to fully enjoy their sexual life and plan their reproduction responsibly. The right to decide freely and responsibly on the spacing of children and to have access to the information, education and means which enable individuals to exercise this right is guaranteed by Article 16(1)(e) of the CEDAW.122 This includes an obligation of state parties to ensure that women can
Ibid. See e.g. Pretty, supra note 113 at para. 61; Tysic, ibid. at para. 130. 117) X. and Y., supra note 114 at para. 22; Y.F. v. Turkey (2003), App. No. 24209/94, Eur.Ct.H.R., CEDH/ ECHR 2003-IX. 118) Pan American Health Organization WHO, Promotion of Sexual Health: Recommendations for Action Proceedings of a Regional Consultation Convened by PAHO/WHO in Collaboration with the World Association for Sexology, Antigua Guatemala, Guatemala, May 19-22, 2000, (Washington, D.C.: PAHO, 2001), online: PAHO <http://www.paho.org/English/HCP/HCA/PromotionSexualHealth.pdf> (date accessed 20 August 2007) cited in Cook, Dickens & Fathalla, supra note 36 at 174. 119) Pan American Health Organization WHO, ibid. at 6, cited in Cook, Dickens & Fathalla, ibid. at 175. 120) ICPD Programme of Action, supra note 82. 121) Ibid. at para. 7.2. 122) Article 16(1)(e) of the CEDAW, supra note 8, reads: 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations
116) 115)
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access a broad range of modern contraceptive methods. Under Article 8 of the European Convention, states have a positive obligation to ensure respect for private life, which includes the sexual life and the physical and mental integrity of the person. Since reproductive choice is a critical component of womens personal integrity and autonomy,123 the right to private life is undermined when women are prevented from accessing contraception or other reproductive health services. In addition, in its recent judgement in Tysic v. Poland,124 the Court made clear that when a state decides to legally provide for abortion services, it should legislate in a way that ensures that womens access to this service is not obscured. In that respect, the Court has recognized the time-sensitive nature of safe abortions. Moreover, the Court in Tysic emphasized states positive obligations to ensure that the regulation of pregnancy termination includes a fair decision making process which gives due respect to a womans right to respect for her private life.125 Such reasoning can be applied to cases of conscientious objection in the reproductive health care context. When a state provides for access to contraception or abortion services, it should ensure that this access is not jeopardized by third party interventions such as health providers invoking a right to conscientious objection. An unrestricted exercise of conscientious objection can often lead to the late and ineective delivery of such services. Therefore, where a state decides to provide health professionals with the possibility of invoking conscientious objection, it should legislate in a way that does not prevent individuals from obtaining the service in a timely and appropriate fashion. This obligation can be derived from the right of women to respect for their psychological and psychical integrity and personal autonomy. 3.3.3. Right to Liberty and Security Article 5 of the Convention protects the right to liberty and security of person.126 The right to liberty has been interpreted by the Court and Commission in the context of arbitrary deprivations of liberty.127 Regarding the second right secuand in particular shall ensure, on a basis of equality of men and women: [. . .] (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights. 123) Rebecca J. Cook, International Protection of Womens Reproductive Rights (1991-1992) 24 N.Y.U.J. Intl L. & Pol. 645 at 696. 124) Tysic, supra note 114. (The applicant, Alicja Tysic, has suered from serious eyesight complications as a result of carrying her pregnancy to the term after being denied therapeutic abortion that is legal in Poland.). See also Center for Reproductive Rights, Written Comments to the European Court of Human Rights, case Tysic v. Poland, Application No. 5410/03 21 September 2005, available at http://www. reproductiverights.org/pdf/AmicusECHR.92005.pdf. 125) Tysic, ibid. at paras. 117-8. 126) Article 5(1) of the Convention, supra note 4, reads: (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: [. . .]. 127) See e.g. East African Asians v. United Kingdom (1978), App. No. 4626/70 and others, Eur.Comm. H.R., decision of 6 March 1978 on admissibility of the application, 78-A D.R. 5.
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rity of person Karen Reid suggests that this right does not seem to have an independent existence; rather, it is juxtaposed against the right to liberty.128 Reid has observed that the other infringements of a persons security like those related to physical integrity have been found either under Article 8 of the Convention (right to respect for private and family life), or under Article 3 (right to be free from torture, inhuman or degrading treatment or punishment).129 Despite this traditional approach of interpreting the term security of person in the context of arbitrary interference with liberty, it can be argued that an infringement of personal integrity (both physical and mental) aects not only an individuals right to private life, but also her or his right to security of person. This was armed in the decision of the Supreme Court of Canada in R. v. Morgentaler et al.130 relating to the criminalization of abortion. In her concurring opinion Justice Wilson adopted a broad interpretation of the term security of person explaining that criminalizing abortion makes womens capacity to reproduce a subject of state control.131 She continued by stating:
[a woman] may not choose whether to exercise her existing capacity or not to exercise it. This is not, in my view, just a matter of interfering with her right to liberty in the sense [. . .] of her right to personal autonomy in decision-making, it is a direct interference with her physical person as well. She is truly being treated as a means a means to an end which she does not desire but over which she has no control.132
Although that case focused on the criminalization of abortion and its impact on women, Wilson J.s interpretation of security of person in the context of free reproductive decision-making can be applied to cases of conscientious objection in the context of abortion or contraception. In both cases, womens capacity to reproduce and fully enjoy their sexual life is subjected to the control of the objecting health professional. By refusing to dispense contraception or to perform an abortion, a providers objection may preclude a woman from receiving timely care if she is not referred to an accessible alternative provider. Denying women timely and easy access to the means to control their fertility jeopardizes womens security. Restrictions on the accessibility of modern methods of contraception, including emergency contraception (EC), put women at risk of unintended pregnancies and related health hazards. The number of unintended or unwanted pregnancies continues to be high. According to the Global Health Council, there were over 300 million unintended pregnancies worldwide between
128) Karen Reid, A Practitioners Guide to the European Convention on Human Rights, 2nd ed. (London: Sweet & Maxwell Ltd, 2004) at 241. 129) Ibid. 130) R. v. Morgentaler (1988), 44 DLR (4th) 385 (Supreme Court of Canada). 131) Ibid. at para. 243. 132) Ibid.
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1995 and 2000.133 Moreover, in countries with restrictive abortion laws unintended pregnancies often lead to unsafe abortions. According to WHO estimates, approximately 55000 unsafe abortions take place worldwide daily and cause the deaths of more than 200 women each day.134 Some pharmacists object to all modern methods of contraception including EC, sometimes called the morning after pill. They generally refuse to provide EC because they believe it causes an abortion.135 This religiously biased opinion is in conict with medical evidence that proves that EC is not an aborticant. The International Federation of Gynecology and Obstetrics (FIGO) expressly states that . . . [EC] is not an aborticant because it has its eect prior to the earliest time of implantation.136 EC works within 72 hours of sexual intercourse; however, it is most eective within the rst 24 hours.137 Due to this short window of eectiveness, women need to obtain EC promptly. A pharmacists refusal to sell EC may prolong the time between intercourse and the ingestion of the pill, thus decreasing the eectiveness of the EC pill. As Joanna Erdman and Rebecca Cook explain, [EC] oers an enormous potential as the only contraceptive method that can be used after sexual intercourse to prevent unintended pregnancies and reduce the need for abortion services. [. . .] Unintended pregnancy is associated with higher maternal morbidity, a greater risk of depression, maternal and child abuse, and social and economic hardships.138 The potential health hazards increase with the seriousness of the circumstances related to the pregnancy. For example, adolescent girls can suer serious mental depression when they are exposed to an unintended pregnancy. Women who are victims of rape may also suer serious depression and physical harm. Denying
Global Health Council, Promises to Keep: The Toll of Unintended Pregnancies On Womens Lives in the Developing World 7 (Washington, D.C.: Global Health Council, 2002), online: Global Health Council, available at http://www.globalhealth.org/assets/publications/PromisesToKeep.doc. 134) WHO, Unsafe Abortion: Global and Regional Estimates of Incidence of and Mortality due to Unsafe Abortion with a Listing of Available Country Data (Geneva: WHO, 3rd ed., 1997) in Cook, Dickens & Fathalla, supra note 36 at 26-7. 135) Donald W. Herbe, The Right to Refuse: A Call for Adequate Protection of A Pharmacists Right to Refuse Facilitation of Abortion and Emergency Contraception (2002-2003) 17 J.L. & Health 77 at 85 [Herbe, The Right to Refuse]. 136) International Federation of Gynecology and Obstetrics (FIGO), Ethical Aspects of Induced Abortion for Non-Medical Reasons (1998) at para. 11 in: FIGO, Recommendations on Ethical Issues in Obstetrics and Gynecology by the FIGO Committee for the Ethical Aspects of Human Reproduction and Womens Health (London: FIGO, 2003) 62-5. 137) National Advisory Committee on Emergency Contraception (NACEC), BACKGROUNDER, (Canada: NACEC, 2003) online: NACEC <http://www.pharmacists.ca/content/about_cpha/whats_happening/ cpha_in_action/pdf/NACEC_ECPbackgrounder.pdf#search=%22WHO%2C%20Emergency%20 Contraception%2C%20A%20Guide%20for%20Service%20Delivery%22> (date accessed: 15 August 2006). See also WHO, Emergency contraception. A guide for service delivery. (Geneva: WHO, 1998). 138) Joanna N. Erdman and Rebecca J. Cook, Protecting Fairness in Womens Health: The Case of Emergency Contraception in Colleen M. Flood (ed.), Just Medicare: Whats In, Whats Out, How We Decide (Toronto: University of Toronto Press, 2006) 137-67, at 138, 137.
133)
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them immediate access to EC to prevent an unwanted pregnancy is a continuation of the degrading and inhuman treatment to which these women have already been subjected to by the initial act of sexual violence. FIGO has emphasized that [a]ccess to emergency contraception should be an essential component of immediate care for women who suer rape and are exposed to pregnancy.139 Moreover, women who are prevented from timely use of contraception and who do not wish to carry on with an unwanted pregnancy will most probably seek an abortion. As a result, limited access to contraception may lead to a higher number of abortions. In addition, forcing women to opt for unsafe abortions, or continue with unwanted pregnancies will often have devastating consequences for them.140 Women have a right to freely choose whatever means they want to enable them to control their fertility.141 Yet many women continue to be prevented from freely exercising reproductive choice. Women have historically been denied the means necessary for the enjoyment of their sexual and reproductive lives, usually under the claim of preserving their natural role in a society. Control over womens bodies, as exercised through social and political institutions, prevents women from participating fully in society. Unless women are allowed to control their reproductive and sexual lives themselves, their right to security, apart from other rights and freedoms, continues to be threatened. Therefore, a broader characterization of the right to security of the person under Article 5(1) of the Convention is essential for the fulllment of womens health and rights. 3.3.4. Right to Receive Information The right to information has traditionally been understood as a negative right to be free from government interference in the seeking, receiving and imparting of information and ideas.142 The Strasbourg organs have interpreted this right similarly, refusing to recognize a positive obligation of a government to provide information under Article 10 of the Convention on its own motion.143 Despite this rather narrow reading of Article 10, the question of whether this provision imposes
139) FIGO, Guidelines in Emergency Contraception (2001) at para. 3 (Recomm.) in FIGO, supra note 136, 65-6. 140) See e.g. Tysic, supra note 114 and 124. See also Center for Reproductive Rights, Written Comments to the European Court of Human Rights, case Tysic v. Poland, Application No. 5410/03 supra note 124. 141) See supra note 122 and accompanying text. 142) Cook, Dickens & Fathalla supra note 36 at 210. 143) Reid, supra note 128 at 336. See also Guerra and Others v. Italy (1998), R.J.D. 1998-I, No. 64, Eur. Ct. H. R. at para. 53. In Guerra and Others the Court has interpreted freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, as prohibit[ing] a government from restricting a person from receiving information that others wish or may be willing to impart to him. The Court refused to impose on the government the positive obligations to collect and disseminate information of its own motion. Article 10 of the Convention, supra note 4, reads: (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. [. . .].
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positive obligations on the state to provide information on reproductive and sexual health services, remains open. The Court dealt with the right to information regarding reproductive health services in the Case of Open Door and Dublin Well Woman v. Ireland.144 In that case, two Dublin womens health clinics claimed violations of several rights guaranteed by the Convention, including the right to expression under Article 10. They were prevented by a domestic court injunction from distributing information to pregnant women on abortion clinics located abroad.145 The Court recognized the importance of access to information on legally available abortion services for womens health and welfare.146 It acknowledged the disproportionate impact of the injunction on women who were not suciently resourceful or had not the necessary level of education to have access to alternative sources of information.147 Considering the evidence submitted by the applicants the Court concluded that the injunction limited the freedom to receive and impart information with respect to services which are lawful in other Convention countries and may be crucial to a womans health and well-being.148 The Courts decision in Open Door centered on the provision of information on abortion services legally available in other countries by a person or institution willing to provide such information. However, the Courts recognition of the importance of information on abortion clinics, in a country where abortion is lawful, indicates the potentiality for one to argue that states have a positive obligation to provide information on legally available health services in their territory. This obligation would also be the case for health professionals who object to legally available health services. Although the Strasbourg organs have not interpreted the right to receive information as imposing positive obligations on states, some scholars support the claim that the right to information has evolved so as to include a positive obligation of states to provide information that is necessary for the protection and promotion of reproductive health and choice [. . .].149 This duty is also set out in Article 10(h) of the CEDAW, according to which state parties shall secure on a
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, [. . .]. 144) Open Door and Dublin Well Woman, supra note 109. 145) Ibid. at para. 9-28. 146) Ibid. at para. 77. 147) Ibid. 148) Ibid. at para. 72. 149) S. Coliver, The Right to information necessary for Reproductive Health and Choice Under International Law in S. Coliver, The Right to Know: Human Rights and Access to Reproductive Health Information (London and Philadelphia: Article 19 and University of Pennsylvania Press, 1995) cited in Cook, Dickens & Fathalla, supra note 36 at 210.
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basis of equality of men and women [. . .] [a]ccess to specic educational information to help to ensure the health and well-being of families, including information and advice on family planning. The CEDAW Committee elaborated on this positive obligation to inform individuals and especially women of all available reproductive health services by stressing womens right to be fully informed [. . .] of their options in agreeing to treatment or research, including likely benets and potential adverse eects of proposed procedures and available alternatives.150 This information must be conveyed by properly trained sta.151 Furthermore, the right of all women and adolescent girls to sexual health information, education and services has also been emphasized as necessary for the eective protection of women and girls against sexually transmitted infections, including HIV/AIDS.152 The right to receive information is thus jeopardized by practitioners refusal to provide the necessary information for free and informed decision-making in the sexual and reproductive health context. 3.3.5. Right to Freedom of Thought, Conscience and Religion Womens views on their sexuality and reproduction must be respected equally to those of men. Yet some religious and state authorities have condemned contraception, claiming that its use increases womens and girls sexual promiscuity. The same value-judgment is not attached to the use of Viagra, however. One could argue that Viagra and contraception have dierent functions as the former has been designed to treat erectile dysfunction,153 whereas the latter is used as birth control. However, it seems that the ultimate purpose of Viagras treatment of impotence is to enhance mens sexual life. In addition, hormonal contraception has also been used to treat hormonal imbalances. Generally speaking, it can be argued that both Viagra and contraception are designed to help men and women fully enjoy their sexual life; Viagra by treating erectile dysfunction and contraception by regulating reproduction. However, neither religious groups nor conservative state authorities have openly opposed Viagra. This double-standard is also evident when one looks at health insurance coverage of Viagra and contraception. In the United States, health insurance plans have covered Viagra more readily than they have contraceptive pills.154 Contraception is generally viewed by anti-choice groups as taking women away from their traditional mission of child-bearing and preventing the natural creation
150) 151)
UN, CEDAW Committee, General Recommendation No. 24, supra note 3 at para. 20. Ibid. 152) Ibid. at para. 18. 153) See e.g. Smearman, Drawing the Line, supra note 86 at 482. 154) Ibid. at 481-4. Smearman explains that [i]n 1998, thirty-eight years after [the Food and Drug Administration] rst approved oral contraceptives for prescription use, only fteen percent of traditional insurance indemnity plans covered all of the prescription contraceptives most commonly used by women, and forty-nine percent of plans covered none of them. Less than two months after Viagra was introduced to the market in 1998, almost half of all Viagra prescriptions were covered by insurance plans. at 481-2.
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of human life. As contraception enables women to enjoy non-procreative sex and exercise reproductive choice, it is denied by many religious and conservatives groups who wish to restrict womens autonomy through patriarchal stereotypes about womens role in society. Freedom of thought, conscience and religion also means that no one should be unduly restricted by the religious or other convictions held by other persons. Yet, women who decide to control their fertility or have an abortion are often subjected to judgments and stigmatization by other people, including health professionals. As Cook, Dickens and Fathalla note [r]eligious freedom is without substance unless individuals are free to act consistently with their own beliefs about religion, and to follow their own conscience regarding doctrines of faith they do not hold.155 In Pichon and Sajous the women clients were denied contraception because the pharmacists believed that dispensing contraception violated their religious convictions. By doing so the pharmacists imposed their religious beliefs on their female customers who did not share the same convictions and thus jeopardized their enjoyment of several rights and freedoms guaranteed in the Convention. Had the Court decided that the pharmacists conscientious objection fell within the ambit of Article 9(1) of the Convention, its analysis under the second paragraph of this provision should have concluded that the restriction of the pharmacists conscientious refusals to provide contraception was justied for the eective protection of the whole range of above-analysed rights and freedoms that enhance womens reproductive and sexual health. A further principle of interpretation applied in the Courts usual analysis of the standard necessary in a democratic society is the less restrictive alternative doctrine.156 The state ought to demonstrate that there was not a less restrictive measure available that would ensure protection of the legitimate interests at stake, while avoiding placing an unreasonable limit on the right which has allegedly been violated. Commentators have emphasized the role of governments in accommodating rights of conscience while placing necessary restrictions on them. Jeremy Gunn draws attention to the means that would help to accommodate the expression of rights of conscience, without compromising other human rights in the process. In other words, the question is not whether there should be limits, but how and where those limits should be drawn.157 Gunn suggests that instead of providing states with a wide margin of appreciation to decide how they will restrict the manifestation of those beliefs, the Court should follow a less restrictive alternative approach.158 In its previous jurisprudence, the Court had emphasized that
155) 156) 157) 158)
Cook, Dickens & Fathalla, supra note 36 at 213. See e.g. van Dijk, van Hoof, van Rijn & Zwaak, supra note 61 at 340. Gunn, Adjudicating Rights of Conscience, supra note 21 at 325-6. Ibid.
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the interference should entail the least restrictive means available, but which was still able to secure the protection of democratic principles and human rights and freedoms.159 The engagement of the less restrictive alternative doctrine in cases similar to Pichon and Sajous would enable the Court to identify the most appropriate measures to ensure the protection of womens rights and freedoms connected to sexual and reproductive health within the context of the exercise of conscientious objections. The reasonableness of the obstructing measures would have to be determined through an assessment of the impact of the professionals refusals to provide a reproductive health service on the womens enjoyment of sexual and reproductive health rights and freedoms. The Courts analysis under the standard necessary in a democratic society should, it is submitted, result in the drafting of general guidelines on the accommodation of conscientious objection to contraception or other reproductive health services. One could respond that the Court is not in a position to provide guidelines on the accommodation of conscientious objection in reproductive health care and that such a task falls within the respective authority of individual states. According to the Courts jurisprudence, state parties have a certain margin of appreciation in assessing the existence and extent of the need for interference [. . .].160 This is because the states are often considered to be more knowledgeable of local circumstances and hence more competent to decide on appropriate measures. However, . . . this margin is subject to European supervision, embracing both the law and the decisions applying it, even those given by independent courts.161 In cases like Pichon and Sajous the governments discretion to decide on the accommodation of conscientious objection should be narrowed to ensure the eective protection of womens human rights. As feminist scholars have repeatedly emphasised, state power is still predominantly construed according to male interests.162 The majority of decision-makers remain men; womens voices, although more prominent today than in the past, continue to be insuciently heard. As a result, it is not exceptional to nd a policy or law that governs issues related to women in a way that harms them as it does not reect their needs and interests.163 It is important that in cases concerning women in general, and their reproductive
See e.g. Case of Otto-Preminger-Institute v. Austria (1994), App. No. 13470/87, Eur.Ct.H.R. Dahlab, supra note 65 at 12. For discussion on the margin of appreciation principle see e.g. Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Oxford: Intersentia, 2002); Thomas A. ODonnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights (1982) 4 Human Rights Quarterly 474. 161) Dahlab, ibid. 162) See e.g. Catharine A. MacKinnon, Are Women Human?: And Other International Dialogues (Cambridge: Harvard University Press, 2006). 163) Ibid. See also Catharine A. MacKinnon, Womens Lives, Mens Laws (Cambridge: Harvard University Press, 2005).
160) 159)
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choices in particular, that the Court assesses the decisions made by male-dominated governments from a womens perspective and exercises its supervision more often than it has done previously. As it was already stated, legislation of the European states that provide some form of conscientious objection in the reproductive health context varies in its accommodation. In general, most of these countries have failed to adopt basic measures that would ensure womens timely access to these services. Therefore, under the European supervision rule the Court should design guidelines articulating the fundamental measures that ensure womens timely and safe access to legally guaranteed reproductive health services.
4. The Eective Regulation of Conscientious Objection On the basis of the analysis above and in the view of international obligations and the professional standards it is possible to outline fundamental principles of regulating conscientious objection in the sexual and reproductive health context. Besides the eective protection of womens human rights, particularly the right to non-discrimination and gender equality, states international obligations and professional codes of conduct support the restriction of conscientious objection in reproductive health care. 4.1. International Obligations to Ensure Access to Reproductive Health Services Timely and safe access to reproductive health services has been internationally recognized as a key component of a right to the highest attainable standard of health.164 The UN Committee on Economic, Social and Cultural Rights has emphasized the right of safe, physical accessibility to health facilities and goods and services, including reproductive health services, especially for vulnerable and marginalized groups such as women and adolescents.165 It has also stressed the importance of accessible information and education on reproductive and sexual health issues.166 State failures to remove the barriers that prevent access to this information may lead to a violation of womens right to the highest attainable standard of physical and mental health under Article 12 of the ICESCR.167
164) See especially UN, Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health Art. 12, (22nd Sess. 2000), in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies U.N. Doc. HRI/ GEN/1/Rev 5 (2001) [CESCR Committee, General Comment No. 14]. UN, CEDAW Committee, General Recommendation No. 24, supra note 3. 165) CESCR Committee, General Comment No. 14, ibid. at para. 12. 166) Ibid. 167) ICESCR, supra note 79, Article 12(1) reads: The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
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Article 12 of the ICESCR includes a states obligation to facilitate access to health services for all individuals.168 A failure to adopt the necessary measures, to ensure that individuals or a group are not prevented from accessing health care due to the actions of third parties, may result in a breach of a states obligation to protect the right to health.169 Therefore, the state is obliged to regulate the activities of individuals, groups and corporations to prevent them from restricting other persons access to health care.170 Similarly, the CEDAW Committee has emphasized the states responsibility to ensure the universal access of all women to reproductive health services. It has also expressed the need to eliminate existing barriers that women face in obtaining such services, including the distance from health facilities.171 Countries that allow for conscientious objection must adopt measures that will ensure women are referred to non-objecting providers.172 When these international human rights obligations are applied to the context of practitioners refusals to provide reproductive health services, it is clear that the state is responsible for accommodating conscientious objections in a manner that does not limit womens access to legally available reproductive health care. Special factors such as rural location, low socio-economic status and the time-limited eectiveness of required medical treatment or products must be taken into account when arranging access to these services. 4.2. Professionalism vs. the Personal Interests of Health Practitioners Another justication for restricting conscientious objections in the health care context is to ensure compliance with professional responsibilities.173 Health practitioners have a general duty to serve patients, a duty which results from their special privilege to provide health care. A person wishing to become a health practitioner has to meet certain requirements before she or he can be considered suitably qualied to become a member of the profession.174 Health practitioners, as a professional group, possess special privileges obtained through state licensing that grants them a monopoly on the provision of a public service health care.175
CESCR Committee, General Comment No. 14, supra note 164 at paras. 36, 37, 43. Ibid. at para. 51. 170) Ibid. 171) UN, CEDAW Committee, General Recommendation No. 24, supra note 3 at paras. 21, 29. 172) Ibid. at para. 11. 173) See e.g. Adam Soneld, Rights vs. Responsibilities: Professional Standards and Provider Refusals, The Guttmacher Report on Public Policy, August 2005; R. Alta Charo, Health Care Provider Refusals to Treat, Prescribe, Refer or Inform: Professionalism and Conscience, American Constitution Society for Law and Policy, February 2007 [Charo, Health Care Provider Refusals to Treat, Prescribe, Refer or Inform]. 174) See generally Smearman, Drawing the Line, supra note 86 at 507. 175) Charo, Health Care Provider Refusals to Treat, Prescribe, Refer or Inform, supra note 173 at 13.
169)
168)
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This exclusive position exemplied through the special knowledge of health practitioners results in an inherent power imbalance between the practitioner and patient, creating a dependency of the patient on the skill and judgment of the practitioner. As a result, the patient expects to obtain quality medical care. The practitioner thus bears the responsibility to treat the patient in a professional manner.176 This responsibility transcends health providers own personal beliefs about particular health services. However, some health providers continue to object to the provision of certain health services, especially those mostly or only needed by women. They typically object to these procedures on the grounds of their religious or moral convictions. The case of the French pharmacists, Mrs. Sajous and Mr. Pichon, represents just one such example. They decided to place their religious beliefs over their duty to adhere to their professional code of conduct when they refused to sell contraceptive pills. The pharmacists objections in this case were not an isolated incident in the reproductive health context. In the United States, conscientious objection in reproductive health care rst emerged in the context of abortion177 later followed by the refusals to provide contraceptive pills, EC and assisted reproduction.178 European countries that provide conscientious objection clauses allow for conscientious objection mainly in abortion cases. A few countries allow for conscientious objection to assisted reproduction and contraception, or even to all medical procedures that are against practitioners conscience.179 Health practitioners generally object to reproductive health services on the grounds of their religious beliefs. Their reasons are generally connected to the question of when human life begins. Although many religions have developed opinions on the beginning of human life, the Roman Catholic Church is at the forefront of the debate about preserving foetal life. Its teaching denies abortion on the basis that human life starts at conception.180 The Church then opposes
See e.g. Bernard M. Dickens, Conscientious Objection: A Shield or a Sword? in Sheila A.M. McLean (ed.), First Do No Harm: Law, Ethics and Healthcare. (Aldershot: Ashgate, 2006) at 337-51 [Dickens, Conscientious Objection: A Shield or a Sword?]. 177) Holly Teliska, Obstacles to Access: How Pharmacist Refusal Clauses Undermine the Basic Health Care Needs of Rural and Low-Income Women (2005) 20 Berkley J. Gender L. & Just. 229 at 233-5 [Teliska, Obstacles to Access]. 178) See e.g. Charo, Health Care Provider Refusals to Treat, Prescribe, Refer or Inform, supra note 173 at 2. Charo points out that traditionally almost all states in the United States provided for some conscientious objections clause to abortion. However, in recent years with the abortion debate increasingly at the center of wider discussions about contraception, end of life care, assisted suicide, genetic screening, reproductive technologies, and embryonic stem-cell research, nurses and pharmacists have begun demanding the same right of refusal. 179) The British Medical Association, for example, allows doctors to refuse to prescribe contraception; however, this is on the condition that they refer the woman to a non-objecting provider. In Spain, the autonomous communities of Cantabria and La Rioja have adopted laws that enable pharmacists to refuse to fulll their professional duties where it does not threaten the patients rights (Cantabria) or the health of the patient (La Rioja). See supra note 39. See also the Slovak Ethical Code of the Health Practitioner, supra note 40. 180) See generally Herbe, The Right to Refuse, supra note 135 at 86.
176)
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modern methods of contraception based on the claim that it facilitates non-procreative sex.181 In the case of EC, the Church believes that it is an abortifacient182 in spite of scientic evidence that it does not cause an abortion.183 Health practitioners who give preference to personal beliefs inspired by religiously biased opinions, especially towards women, refuse to abide by the medical standards of their profession. These standards are usually stated in the codes of ethics or laws governing the status of health practitioners and include duties such as being committed to the patients well-being, respecting the patients autonomy and preventing harm to patients. By qualifying for the profession, the practitioner agrees to these rules. One of the duties of the practitioners is to provide services in which he or she has been trained. This duty has been armed by the World Medical Association in the Declaration on the Rights of the Patient according to which [t]he physician may not discontinue treatment of a patient as long as further treatment is medically indicated, without giving the patient reasonable assistance and sucient opportunity to make alternative arrangements for care.184 In its guidelines on conscientious objection, FIGO has similarly emphasised that the primary duty of obstetrician-gynaecologists is to serve womens reproductive health and well-being.185 Where professional duties conict with the practitioners personal beliefs, such conicts must be resolved in a way that does not compromise the patients needs which must always remain the primary consideration of the health professional.186 In case of pharmacists there is another argument in favour of restricting conscientious objections based on the fact that pharmacists, who refuse to dispense contraception, interfere with the relationship between doctor and patient; by refusing to honour the prescription provided to the patient by the doctor.187 Generally, oral contraception must rst be prescribed by a gynaecologist before it can be obtained in a pharmacy. Pharmacists are responsible for dispensing all drugs for which they are licensed.188 There are generally two exceptions when they may legitimately refuse to dispense the prescribed medication when a pharmacist
See generally Smearman,, Drawing the Line, supra note 86 at 497-500. Herbe, The Right to Refuse, supra note 135 at 85. 183) See supra notes 136-7 and accompanying text. 184) World Medical Association, Declaration on the Rights of the Patient, adopted by the 34th World Medical Assembly, Lisbon, Portugal, September/October 1981, as amended in 1995 and editorially revised in 2005, at para. 1f. 185) FIGO, Committee for the Ethical Aspects of Human Reproduction & Womens Health, Ethical Guidelines on Conscientious Objection. (London: FIGO, August 2005), at para. 1. 186) Charles D. Hepler, Balancing Pharmacists Conscientious Objections With Their Duty to Serve, J Am Pharm Assoc. 2005, 45(4):434-436. See also ibid. 187) See generally Smearman, Drawing the Line, supra note 86 at 507-10. 188) Susan A. Cohen, Objections, Confusion Among Pharmacists Threaten Access To Emergency Contraception, in The Guttmacher Report on Public Policy, (New York: Guttmacher Institute, 1999) at 2, online: Guttmacher Institute <http://www.guttmacher.org/pubs/tgr/02/3/index.html> (date accessed: 1 July 2006).
182) 181)
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has reasonable doubts about the validity of the prescription or when the prescribed drug could have a harmful interaction with another medication taken by the patient.189 Thus, the primary role of the pharmacist is to ensure that the patient obtains the most suitable medication. However, if the pharmacist is allowed to refuse to sell medical products on grounds of conscience, the generally accepted standards of professional conduct preclude the pharmacist from objecting in a way that obstructs the patient from timely access to the requested product. Otherwise, the pharmacist, like other health practitioners who deliberately refuse to provide services without fullling the minimum obligations necessary to the timely provision of health care, is committing professional misconduct.190 4.3. Establishing Standards for the Regulation of Conscientious Objection Given the fundamental human rights and professional ethics engaged by conscientious objection, it is essential that practitioners refusals are accommodated in a way that does not compromise womens health or the primary commitments of practitioners. Such accommodation requires the adoption of eective measures to ensure womens access to health care. These measures include core obligations that each objecting practitioner should fulll, namely: a. a duty to inform all patients of all legally available medical procedures and products to ensure the patient can make an informed choice; b. a duty to refer a patient to a non-objecting practitioner; c. a duty to provide treatment in emergency situations; and d. a duty to notify all patients and employers in advance of which specic procedures he or she wishes to conscientiously object to. The rst obligation to inform all patients of all alternative services is connected with the right to make free and informed health decisions. The patient has a right to receive instruction on all available legal treatments in order to make an informed choice.191 The duty to refer to a non-objecting practitioner and to provide all necessary treatment in emergency situations is based on the obligation to provide timely and safe access to health care, including reproductive health services. The
Ibid. See also Smearman, Drawing the Line, supra note 86 at 509. Smearman notes that courts in the US generally have recognized a pharmacists duty to exercise due care and diligence in the discharge of their professional duties.. She further explains that courts have recognized that pharmacists have a nal opportunity to catch any potentially dangerous errors or issues the physician may have missed [. . .]. 190) Dickens, Conscientious Objection: A Shield or a Sword?, supra note 176 at 347. Dickens explains that . . . the deliberate withholding of information about a patients option of abortion, sterilisation, or, for instance, emergency contraception, and of information about an alternative provider of a service a patient requests but that the physician refuses to provide on grounds of conscience, even when legally protected by a refusal clause, remains medical professional misconduct. 191) Cook, Dickens & Fathalla, supra note 36 at 109-15.
189)
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fourth requirement is necessary to enable employers to adopt measures to ensure the timely and convenient provision of the health service that is the object of the registered conscientious objection. Furthermore, being aware of the objecting status of a health professional, a woman can avoid such practitioners by visiting a friendly practitioner. However, it is essential that sympathetic health professionals are located within a reasonable distance to ensure timely and ecient access to all reproductive health services. Moreover, each pharmacy and health facility should ensure availability of non-objecting practitioners. The Norwegian Abortion Act provides a good model in terms of securing non-objecting providers.192 The four aforementioned duties constitute the minimum requirements necessary for the accommodation of conscientious objections in the reproductive health care context. However, where these measures prove to be insucient in securing timely and easy access to reproductive health services, other arrangements will be needed. For instance, referral to a non-objecting pharmacist may be unworkable if the woman cannot obtain contraception, including the EC pill, in time. This will especially be the case where visiting a friendly provider requires a woman to travel to another location, which will impose a nancial and temporal burden on her. Women from rural areas and poor women are disproportionately aected by the lack of an easily accessible, non-objecting provider.193 These women generally have less opportunities open to them in choosing a pharmacy or health professional than women living in urban centers or of a higher socio-economic status. However, even in towns with more pharmacies, women can be prevented from obtaining contraceptives if another pharmacy is not open, or if the objecting pharmacist refuses to transfer the prescription to another pharmacy.194 In addition, adolescents are another group that are unduly burdened by restrictive access to reproductive health services due to their vulnerability in society. The eective accommodation of conscientious objection is not an easy task. In situations similar to the one in Pichon and Sajous, where the applicants pharmacy was the only one in the town, the accommodation of conscientious objection will most likely be unworkable, given the barriers that arise from the lack of nonobjecting pharmacists or other practitioners. Therefore, it is important that prior to any accommodation of conscientious objection in the reproductive and sexual health context the possible impact of such refusals on patients, in this case women and girls, is assessed. This evaluation should guide policymakers, legislators and judges in determining whether the practitioners should be permitted to refuse to provide services on grounds of conscience, and if yes, to what extent they should be allowed to exercise it. Moreover, the decision-makers should base their
See supra notes 33-5 and accompanying text. See generally Teliska, Obstacles to Access, supra note 177. 194) Smearman explains that in the US the referral to another pharmacy is generally unworkable as . . . many objecting pharmacists also refuse to transfer contraceptive prescriptions as well to ll them. Smearman, Drawing the Line, supra note 86 at 537.
193) 192)
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decision on standards of medical professionalism as well as womens human rights, including the right to non-discrimination on the grounds of sex and gender when accommodating conscientious objection clauses in reproductive and sexual health care.
Conclusion As the EU Network of Independent Experts has suggested, the right to religious conscientious objection can be recognized as a dimension of freedom of thought, conscience, and religion under Article 9(1) of the Convention. In line with this, developments in several European countries show a general trend toward recognizing conscientious objection in the health care context. What remains undeveloped, however, is a unied and eective set of standards to regulate providers refusals. Many European states continue to permit the exercise of conscientious objection in health care in a way that undermines womens timely and safe access to reproductive health procedures and products. In Pichon and Sajous the Court decided to follow its long-established practise of not recognizing conscientious objection as a manifestation of religion or belief under Article 9. On the one hand, one could applaud the Court for a decision protecting the rights of female customers from being overridden by the applicants conscientious refusals. On the other hand, it is questionable whether the approach has genuinely engaged with the competing rights and interests of both the applicants and the aected women. Excluding conscientious objection from the ambit of Article 9 leaves objectors with an idea that their beliefs are not worthy of respect. Acknowledging conscientious objection as a manifestation of ones religion or belief under the rst paragraph of Article 9 and then undertaking an examination of whether interference with this right is justied would oer a fairer and more respectful treatment of the applicants. Applying a proportionality analysis under the second paragraph of Article 9 would require the Court to undertake a more fullsome discussion of the human rights and freedoms engaged by conscientious refusals. One could of course respond that it is better that the Court left conscientious objection outside the scope of Article 9 as it guarantees a greater level of legal certainty than a balancing approach. Once conscientious objection is considered outside the ambit of freedom to manifest ones religion or belief, the health practitioner cannot invoke it no matter what. Moreover, one might insist that the Courts absolutist approach will ultimately protect vulnerable groups such as women and girls who are the most aected by health practitioner refusals. Had the Court decided the opposite and found the pharmacists refusals fell within the scope of Article 9, the nal decision would be much more uncertain. Most concernedly, to what extent might the Court leave the accommodation of conscientious objection within discretion of the national government?
43
The diculty with this line of argument is that it does not correspond with the actual practice of the parties to the Convention. The majority of European countries provide for some conscientious objection in health care as a dimension of freedom of thought, conscience, and religion. Given this reality, womens rights are not adequately protected where the Court fails to account for the fact that conscientious objection is being treated as part of religious freedom in most European states. By recognizing that conscientious objection does function as a manifestation of ones religion or belief, the Court would be able to engage with the reasons that justify its restriction. Assessing the eects of conscientious objection on others enjoyment of conicting rights and freedoms should lead the Court to formulate general guidelines on accommodating objections, particularly in the reproductive health context. This approach is pragmatically important given that so many contracting parties to the Convention already allow for some form of conscientious objection to reproductive health services. Considering recent attempts to restrict access to reproductive health services in some European countries especially as a result of the growing strength of conservative groups in Europe aimed at restricting womens reproductive health rights it seems likely that the development of conscientious objection clauses is far from complete. Unied human rights guidelines stating the minimum standards required of objecting health professionals are therefore increasingly necessary to ensure timely, eective, safe and evidencebased access to legally available reproductive health services.195 These obligations should be legally enforceable so as to secure the protection of womens rights and freedoms related to reproductive and sexual health not only on paper, but rst and foremost in practice.
195) The American College of Obstetricians and Gynecologists, Womens Health Care Physicians, The Limits of Conscientious Refusal in Reproductive Medicine, Committee Opinion, No. 385, November 2007.

Analysis of Pichon and Sajous v. France

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European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

A. Lamakov / European Journal of Health Law 15 (2008) 7-43

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