Conscience, the Church, and the EU

On 14 December 2005, the EU Network of Independent Experts (Network) on Fundamental Rights issued their opinion No. 4-2005: “The Right to Conscientious Objection and the Conclusion by the EU Member States of the Concordats with the Holy See.” Download conscientious_objection.pdf  The European Commission requested the opinion of the Network on the legal status of religious conscientious objection in existing and future concordats between EU Member States and the Holy See. The European Commission posed several questions, but the one I believe that is applicable to our MOJ discussion is this: do conscience clauses in concordats create incompatibilities with fundamental rights of individuals and the law of the EU? Several of us addressed the issue of conscience last couple of months in various domestic legal settings. The EU Network has now brought the matter into the world of international law.

The question of whether concordats containing provisions protecting the right to religious conscientious objection are compatible with the protection of “fundamental rights” and EU law raises serious consequences for the Church and the integrity of its concordats. But the integrity and sanctity of conscience is also compromised. The Network concludes that the concordat clauses it reviewed are incompatible with EU law and the “fundamental rights” guaranteed under its legal scheme. The Network does admit that conscience is an issue that receives limited protection under various human rights instruments and the law of the EU; however, it is only one of several rights that are protected, and the protections accorded to conscience, including claims to conscience based on religious beliefs, are not absolute. The Network asserts that the limited right to conscience based on religious belief must be balanced with other rights that address concerns for: same sex unions; “reproductive health rights”; abortion; euthanasia; artificial fertilization; and, artificial contraception.

In writing its opinion on the legal status of concordat conscience clauses, the Network has reached some tricky, unfortunate, dangerous, and, in my opinion, unsupportable conclusions. For example, in the area of abortion, the Network asserts that the right to religious conscientious objection cannot interfere with access to legal abortion; therefore, healthcare practitioners who exercise their right to religious conscientious objection must refer the woman to a qualified health care practitioner who will agree to perform the abortion. This means that the conscientious objector becomes an indirect rather than a direct accomplice in the matter to which he or she objects. One wonders about other the impact that other developing “rights” beginning to surface in some EU countries, e.g., euthanasia or assisted suicide, will have on the right to conscience. The Network offers a chilling preview of what to expect when it states that in those countries where euthanasia and assisted suicide are “partially decriminalized,” conscientious objectors should not be protected in a way that deprives “any person from the possibility of exercising effectively his or her rights as guaranteed by the applicable legislation.” The Network also appears inclined to be restrictive on the rights of pharmacists to claim exemption based on conscience from selling contraceptives including “morning after” pills. The Network is much clearer about matters involving sexual orientation. The Network appears close to endorsing a Netherlands position that “any form of discrimination on the basis of sexual orientation… should not be tolerated…” It is interesting that the Network relies on the law of this one EU member but not conflicting laws of other EU members.

            Although the opinion of the Network, by itself, is not a legally binding text, it is a forecast of things that may develop in the future. At the least, the opinion reflects the views of influential voices within the EU today. And these voices do not offer comfort to those who have legal protection of their conscience and religious belief under international law. I doubt that the drafters of the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights would agree with interpretations offered by the Network. The current climatic chill in Moscow seems to be moving west at a quick pace but manifesting itself in legal interpretation.   RJA sj