Legal Aspects of Conscience Clauses in Health Care Services

Beskrivelse

Conscience clauses in health care regulations provide health care workers with the possibility of opting-out of performing certain health care services on ethical or religious grounds. This paper focuses on the conscience clause in the Danish Abortion Act and to what extend this clause is in accordance with the relevant human rights provisions.

According to section 10 of the Danish Abortion Act, doctors, midwives, nurses and some hospital health care workers are entitled to be exempted from performing or participating in an abortion procedure. Whereas the corresponding provisions in the English and Norwegian Abortion Acts explicitly exclude certain types of abortion, the Danish Abortion Act makes no such distinctions, and the Act covers - in principle at least - all types of abortion procedures. However, in the case Petrus v. UK (8416/78), the then existing European Commission of Human Rights stated that article 2 (the right to life) in the European Convention of Human Rights did not include an absolute right to life for the foetus as this would render any type of abortion impossible even when the woman's life was at stake, and that would not be in accordance with the woman's right to life under article 2 of the Convention. Thus distinctions must be made as to the reason for carrying out the abortion procedure, as abortions with a therapeutic purpose, especially those necessary to save the woman's life or to prevent serious damage to her physical or mental health, involve a number of the woman's basic human rights. Whereas this aspect addresses the scope of the conscience clause in relation to what types of abortion are therapeutic and therefore must be interpreted in the light of the woman's right to have access to health care, another aspects is the scope of the clause in relation to which health care services - apart from the procedure itself that terminates the pregnancy - are covered by the conscience clause.

In 1989 and 2000 the Danish conscience clause on abortion was amended and two additional hospital staff groups were included in the provision allowing them to refuse to assist or participate in abortion procedures. These two staff groups provide basic care such as bathing patients and giving "emotional" care. The conscience clause as a result does not only cover the specific procedure that terminates the pregnancy, but has over the years been broadened to encompass a wider range of health care services that are only indirectly linked to the abortion procedure. The paper looks into each specific health care service that must or can form part of an abortion, e.g. information, counseling and post-abortion treatment, and concludes that different staff groups are not given the same opportunity to be exempted on ethical or religious  grounds. Should we legally acknowledge the ethical pluralism on these issues by facilitating a wider use of conscience clauses in medical law, or would that violate the basic human rights provisions?