Mixing Health and Religion Legal Illegal Practices Assistant

Mixing Health and Religion – Legal & Illegal Practices Assistant Professor, Ph. D Janne Rothmar Herrmann Dismantling Religion – A Necessity in a Democratic Society?

Mixing Health & Religion • Abortion • Family planning and contraception • Medicinal products • Medically assisted fertilisation • Euthanasia • Treatment without blood or blood products

Respecting the patient’s religious beliefs • Treatment without blood or blood products • The Danish Health Act § 24 • The right to decline treatment • Must be given concurrently with treatment (no advance directives accepted) • Must be based on information outlining the risks and consequences of not using blood • If providing such treatment is contrary to the doctor’s ethical beliefs the patient may be referred to another doctor

Healthcare and healthcare professionals • The right to health: • Essential human right • Prerequisite/foundation for the enjoyment of other basic human rights • Monopoly: • Exclusive control over an essential welfare service • Rights and duties • Professional standards and codes of conduct • Helsinki declaration • Professional codes of ethics • Personal beliefs

What is a conscience clause? • A right not to be obliged to perform certain otherwise compulsory legal duties • Legislative provisions • Constitutional provisions • Concordats/treaties/conventions • What does a conscience clause cover?

Human Rights based • The question of conscience clauses in relation to health care services is a human rights based question. • Human rights are basic and fundamental ethical values which have been transformed into legal values and legal rights. • A catalogue of human rights has been adopted in various treaties under the United Nations. In Europe the regional human rights instruments are those adopted by the Council of Europe – the European Convention on Human Rights being the most important instrument ratified by most European countries.

An implication of the right to freedom of thought, conscience and religion • European Convention on Human Rights - Article 9 1. Everyone has the right to freedom of thought, conscience and religion. . . Article 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as …religion, political or other opinion… -

The right is not unlimited ECHR Article 9 2. Freedom to manifest one’s 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 or morals, or for the protection of the rights and freedoms of others.

The right to health and reproductive choice ICESCR Article 12 (1) ”the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” CEDAW Article 12 (1) ”States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. ” ECHR Article 2 (1) and Article 8 (1) ”Everyone’s right to life shall be protected by law. ” ”Everyone has the right to respect for his private and family life…”

The Danish Health Act Section 100 (2) • Doctors, nurses, midwifes, nursing aides and social and healthcare workers for whom it is against their ethical or religious beliefs to perform or assist in induced abortion can apply for and shall be granted exemption. The same applies for students in the said professions

Distinction ECHR case-law (Paton v. UK): The foetus does not have an absolute right to life as this would render any type of abortion impossible even when the woman’s life is at stake thus violating her right to life under Article 2 of the Convention. Distinction: Therapeutic purpose or non-therapeutic purpose? Involves the basic human right to life and health

Implications of the right to reproductive choice and health • A doctor who invokes a conscientious objection must be imposed an obligation to refer the woman to another doctor • If abortion is legal the woman must be guaranteed effective access to receive an abortion – she must be provided with an effective remedy in case of refusal (Tysiac v. Poland) • A doctor invoking a conscientious objection cannot be the only qualified doctor in remote or rural areas

Broadening the circle of rightholders • To provide equal rights • The broadening of the circle of rightholders implicitly broadens the term ”assist in induced abortion” • Debatable which related health care services are covered by a conscience clause

Related health care services • • Care Counseling Complications Referral to another health professional Information Foetal diagnosis Genetic counseling

Related health care services Counseling The right to health includes the right to seek, receive and impart information concerning health issues The right to seek, receive and impart information is also the core of the right to freedom of expression (Open Door and Dublin Well Woman v. Ireland)

Complications • The right to health covers qualified treatment necessary after an abortion. • Irrespective of the abortion being legal or illegal • Complications arising after a termination must be diagnosed and treated. This aspect is not covered by the conscience clause

Care • Social- and health workers that provide basic care also covered by the conscience clause • ”assist in induced abortion”: care = assist? • Both therapeutic and non-therapeutic?

Slippery slope? • Expanding the circle of rightholders expands the meaning of the term ”assist” • What about other health professionals? - Genetic counseling, foetal diagnosis • What about the hospital porter who has to take the woman to the operating room, the secretary who is scheduling the termination or the pharmacist dispensing the abortifacient?

Tissue from abortions – Clinical risk waste or deceased human being? • Clinical risk waste • Cadaveric foetuses • Hadri-Vionnet v. Switzerland (ECrt. HR)

Pharmaceutical products Licensing in the European Union • The centralised procedure • Scientific opinion – approval by the Commission • Products that may invoke religious sensitivites in certain EU Member States • • • Contraceptives Morning after pill Abortifacients

Mixing Health & Religion • Gender perspective • Women’s health • Women’s autonomy