Doctor urges Medical Council to protect conscientious objection

A GP has written to the Medical Council expressing concern about the government’s approach to conscientious objection to abortion – and says that the issue is causing distress to hundreds of GPs. 

 
Dr Michael McConville said that the issue has manifest more emotion than any other matter in recent memory. Read his letter below. 

---

I have no party political or formal religious affiliations. I contribute to various Human Rights Charities. I am a council member of the NAGP, for which I receive no remuneration and bear my own cost. This letter is sent to you as a private matter and has no connection whatsoever with the public or private opinions of the NAGP.

I am writing to you to express my concern about the manner to which the current government has decided to deal with the matter of conscientious objection to abortion. I do this having witnessed first-hand the deep distress this is causing to hundreds of GPs. In my capacity as a council member of the NAGP, I communicate on a near daily basis with colleagues from all parts of the country and all demographic groups. I can say with certainty that this single issue has manifest more emotion than any other matter in recent memory. The closest dilemma I recall was the initial appearance of HIV and the refusal of most doctors to treat patients. 

Our response to HIV then is a regrettable chapter in the history of medicine which resulted solely from a lack of scientific reasoning applied rationally to a pathological process. In this instance, it was the failure of individual doctors to inform themselves that resulted in the extreme and unforgivable suffering of thousands of young men, which I witnessed and objected to at the time. Now I fear that the Medical Council may make a similar error by failing to apply reason to this issue.

The Medical Council should be aware of the gravity of this matter so that they may avoid the inadvertent consequence of the incidental drawing of itself into the enforcement of the States intent. Higher courts in the EU have already ruled on the issue of CO [conscientious objection] and abortion, and the consensus of human rights lawyers is that the responsibility and obligation to provide abortion services lies properly with the State and not the individual. 

A moral conscience is an act of judgment by reason and enlightenment, which applies the knowledge of one's moral principles (habitual conscience) to actual situations. It is the conjunction, in effect, of reason and deed. Morality has no formal connection to law, or indeed ethics since these lie both in the public domain, and it is illogical that informed reason can exist collectively in any diverse society.

Conscience proceeds the moral evaluation of every circumstance. The right of exercise of conscience nevertheless implies that the person forms his judgment without undue influence and with the evaluation of information allowing the person to judge, cum Scientia, decisions with full knowledge of the facts. The guarantee of freedom of conscience is necessary for a genuinely pluralistic, democratic and just society in that it recognises that there are aspects of the human experience over which no State or other external authority can have a legitimate claim. To resist this assertion is to invite totalitarianism, which is precisely the reason the EU convention of Human Rights came into being. To silence, in any way, this fundamental freedom is to choose to ignore the lessons of history that readily demonstrate how rapidly society can descend into chaos.   

Conscientious objection is a component of freedom of conscience, which is itself recognised in positive law, primarily by Articles 18 of the International Covenant on Civil and Political Rights and Article 9 of the European Convention. Conscientious objection is also a right. In so far as duties and rights are two sides of the same coin, the recognition of a duty of objection strongly suggests the recognition of a corresponding right. The recognition of a right to conscientious objection does not raise problems in European law since the latter recognises this right as a way of exercising freedom of conscience, which it guarantees especially to individuals against domestic legal orders. 

Most of the members of the EU Human Rights Committee considered that properly reasoned objection concerns directly the forum internum, ( the conscious self) and that it was therefore not a "manifestation" of belief capable of limitation. Applied logically this consideration makes the right to conscientious objection a subjective and absolute right, for this right since it finds its origin in the individual.
.
In understanding the conscientious objection, it is vital to distinguish the fundamental difference between, on the one hand “to be detained to act according to one’s conviction” and on the other  “to be forced to act against one’s conviction”. At its most basic level, this correlates to the individual understanding and differentiation of good versus evil. To do good and avoid evil, in short, is the principal and universal moral norm. To do good is the positive actions that the conscience prescribes. To avoid evil is to refrain from what the conscience forbids; Both are the expression of a conviction, a “dictamen rationis”, based in scientific reasoning. Thus doing good is an affirmative action, while avoiding evil is a conscientious abstention. This freedom not to act is not the positive manifestation of the conviction but is a positive action in that its aim is the preservation of the integrity of conscience itself. 

There is no arguable balance between good and evil: to do good is an affirmative moral ( not legal) obligation, determined by circumstances; however, the avoidance of evil is a privative obligation under every circumstance. The former is thus relative, while the latter is absolute and the core of the reasoning derives only from the formation of the conscious self.

Thus, contrary to a positive manifestation, which is subject to limitations, it is impossible to “restrain” or limit an abstention without effectively destroying it. If abstention is a subject of sanction or coercion, as may be applied by a regulator, it ceases its existence immediately as "a freedom". The freedom under question is one of morality and not law and cannot, therefore, be justly dealt with by law.

In light of this reasoning I urge the council to consider the following: 

In the matter Judgement of the Court in case Oliver Brüstle v Greenpeace e.V., 18 October 2011, C-34/10

The court ruled thus: "any human ovum must, as soon as fertilised, be regarded as a 'human embryo' if that fertilisation is such as to commence the process of development of a human being and that biological material originating from humans must be consistent with regard for fundamental rights and, in particular, the dignity of the person". On this point, the Advocate General Yves Bot asserted that “This shows that human dignity is a principle which must be applied not only to an existing human person, to a child who has been born, but also to the human body from the first stage in its development, i.e. from fertilisation.” 

Therefore, given the options open to the council to sanction a doctor for refusing to send a human to certain death; to which patient was that doctor failing in their duty? The patient who wishes to kill the embryo or the human to which they owe the right to dignity? 

I do not believe that the council can answer this either in law or the abstract. Abortion on demand is thus not, necessarily, a medical but a societal problem into which doctors, mainly GPs, have been placed unfairly by consequence. There is no case law within the highest courts of Europe which has made abortion on demand a fundamental right. There is, however, articles of the both the Irish Constitution and EU Charter of human rights that guarantee freedom of conscience and religious belief that must have a positive effect in the law. 

Whereas I have no objection to abortion for medical reasons, I have a profound objection to the arbitrary taking of human life. The taking of human life by mere choice is contrary to the aims of medicine, and it would be a fateful day for Irish medicine if the council were ever to declare otherwise.

In the case of  ECHR, R. R. v. Poland, n° 27617/08, 26th of May 2011, § 206; ECHR, P. and S. v. Poland, n° 57375/08, 30th of October 2012 far as abortion is concerned, the European Court of Human Rights was incidentally driven to state its position in several cases involving Poland. Considering that conscientious objection, the Court judged that “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.” 

The obligation is thus on the State to provide these services and not on the individual, who remains free to exercise their conscience in the manner that the individual regards as effective and not what the state regards as effective. 

In conclusion: This is a grave issue which has the potential to cause unnecessary pain to the medical community. Those of us who object do so by conviction through reason and conscience and we will refuse to conform to a societal belief as have more value than our freedom to do no evil, as we understand it. CO has not affected and should not affect the ability of those who do not hold my beliefs through the exercise of their reason and conscience to obtain an abortion on demand. 

Finally, all of my staff have stated that they will not deal with patients who seek abortion on demand. I have a duty of care and legal obligations to them.

I wish you every success in your new post in these challenging times and hope that you consult with other members to remove the council from enforcing bad law.

Yours sincerely,

Dr M E McConville