What is Freedom of Conscience?

Section 22 of the new abortion law – the Health (Regulation of Termination of Pregnancy) Act 2018 – states that it does not oblige any medical practitioner, nurse, midwife or student nurse/midwife to participate in carrying out an abortion. Amendments to further strengthen the right to freedom of conscience in the Act were sought during the course of the debate in the Oireachtas but were not accepted. However, everyone has a right to freedom of conscience. Freedom of conscience is a well-established human right and is enshrined in domestic and international law and in the existing Medical Council guidelines.

It is protected in Article 9 of the European Convention on Human Rights. Our Constitution, Bunreacht na hÉireann, also upholds freedom of conscience at Article 44.2.1° and 44.2.3°:

“1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”

“3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”

Article 18 of the Universal Declaration of Human Rights provides:

“Everyone 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 teaching, practice, worship and observance.”

The Irish High Court has declared that freedom of conscience is also one of the unenumerated (unspecified) rights protected by Article 40.3 of the Constitution and that that protection is not limited to religious convictions. Mr Justice McDermott of the High Court noted that freedom of conscience, though not an absolute right, is a right which the State is obliged to defend and vindicate as far as practicable and to protect from unjust attack.[1]

The Parliamentary Assembly of the Council of Europe in a 2010 Resolution entitled ‘The right to conscientious objection in lawful medical care’, stated:

“No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act, which could cause the death of a human foetus or embryo, for any reason.”[2]

The European Court of Human Rights has found that, while States are not obliged to permit abortion, if they do permit it, they must organise it in a manner consistent with an effective exercise of the freedom of conscience of health professionals:

“states are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”[3]

[1] AM & MM v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform [2014] IEHC 388, paragraphs 32-34.

[2] Parliamentary Assembly of the Council of Europe, Resolution 1763 (2010).

[3] RR v. Poland (Application. No. 27617/04) (2011) 53 EHRR 1046, paragraph 206 (emphasis added).