Institutional freedom of conscience in relation to euthanasia and assisted suicide
Lynn Wardle*
Around the world, policies and actions of many governments
and governmental agencies are threatening rights of conscience
of health care providers and employees. These challenges
and dangers seem to be increasing.
Recent times have seen numerous high-profile incidents in
which nurses, doctors, hospital staff, government employees, and
other health care workers are being pressured, required and
forced to provide morally-controversial elective procedures
(such as non-therapeutic abortions) despite their expressed
moral objections to participating in such services.
For example, in the U.S. Catherina Cenzon-DeCarlo, a nurse at
a hospital in New York City, was
reportedly forced to participate in a gruesome, violent,
dismemberment abortion over her objections. She was told
that if she did not participate in the abortion of a 22-week-old
fetus she would be charged with "insubordination and patient
abandonment" which would jeopardize her nursing license and her
job.
In
another case, the Alaska Supreme Court ordered a private
pro-life hospital to allow its facilities to be used for the
performance of abortions. Likewise, several years ago the
American College of Obstreticians and Gynecologists announced
that its members could not exercise their rights of conscience
to not perform or assist in abortions if their refusal might
"constitute an imposition on religious or moral beliefs of
patients." Also, another American accreditation agency mandated
that all medical students must receive abortion training, and it
took passage of a federal law to protect those students' rights
of conscience.
One of the latest examples of official disrespect for rights
of conscience of health providers has occurred in Sweden, where
the tolerant live-and-let-live attitude is almost a national
religion. So one might expect the Swedes, of all people,
would deeply respect and strongly protect health care workers'
rights of conscience and of conscientious objection to
participating in highly controversial medical practices such as
elective abortion.
Sadly, when it comes to abortions, many Swedes, including
those in positions of legal authority over the provision of
health care services, are stunningly intolerant of the basic
human rights of medical workers who object to providing elective
abortions.
Ellinor Grimmark,
a Swedish midwife, has become the symbol of Swedish
disrespect for rights of conscience. A devout Christian,
she obtained a Master of Science in Nurse-Midwifery from a
Swedish university in January 2014. Grimmark then was
hired by a local women's clinic but soon was fired because of
her conscientious objection to abortion. Other job offers were
withdrawn because of her objection to abortion.
Unable to find work as a nurse in Sweden, Grimmark took a job
working as a nurse in Norway. The Norwegian hospital that
employs her submitted a letter supporting her stating that she
performs her responsibilities well and diligently, and that her
refusal to assist in performing abortions has never caused any
problem for patients or her co-workers.
Surprisingly, however, a Swedish Equality Ombudsman ruled in
April 2014 that Grimmark was not the victim of religious
discrimination. Instead, it found that she was properly denied
employment "because she was not prepared to perform duties that
were part of her job description."
Likewise, just four months ago, in November 2015, a district
court in Sweden rejected Grimmark's religious discrimination
complaint. She expects to appeal that
unfavorable ruling to the Court of Appeals, according to
Scandinavian Human Rights Lawyers, an NGO that has been
assisting her. It also is reported that Grimmark will take her
case to the European Court of Human Rights. So her case is
not over yet, but developments in it have been disturbing so
far.
The Grimmark case raises serious issues of international
human rights. For example, Article 9 of the European Convention
of Human Rights guarantees basic human rights including the
rights to freedom of thought, conscience and religion. Sweden
has ratified that Convention.
Resolution 1763 of the Parliamentary Assembly of the Council
of Europe also establishes that healthcare professionals shall
not be coerced or discriminated upon because of refusal to
perform or assist in any act that could end a human life at its
beginning or end. It specifically provides that: "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 actions of the Swedish authorities and courts also seem
to violate the
Universal Declaration of Human Rights which was drafted
after the atrocities of World War II because "disregard and
contempt for human rights … resulted in barbarous acts which …
outraged the conscience of mankind … ." Id. Preamble.
Article I of the Universal Declaration of Human Rights
provides: "All human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience … ."
That is not merely an incidental or peripheral interest, but it
is the first "right" protected in the first Article of the
Declaration.
Freedom of conscience is underscored by Article 18 of the
Universal Declaration which also provides that: "Everyone has
the right to freedom of thought, conscience and religion; this
right includes freedom to … manifest his religion or belief in
teaching, practice, worship and observance."
We sometimes may think that were are being deluged by too
many laws. However, the continued violations of basic
rights of conscience around the world remind us that such
repetitive laws are needed to protect basic rights of conscience
that humanity and all nations are all too prone to forget.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at
Brigham Young University. He is author or editor of
numerous books and law review articles mostly about family,
biomedical ethics and conflict of laws policy issues. His
publications present only his personal (not institutional)
views.
199 at para 160.