Conscientious Objection: Individual or Institutional?

In the aftermath of the abortion referendum, a lot of commentary has now focussed on the right to conscientious objection. This right is typically associated with article 9 of the ECHR and it is to the effect that one has freedom of conscience so long as the exercise of such freedom does not conflict with public order, health and morals, or the rights and freedoms of others. Accordingly, there are a number of activities that individuals, especially those working in healthcare, can object to and refuse to carry out, and abortion is one of them.

So far so good; health minister Simon Harris has guaranteed the right to conscientious objection to individuals. However, a rather thorny issue has emerged and that is whether or not the right to such objection extends not only to individuals but also to institutions.  Harris has stated that it only applies to individuals, whereas Baroness Nuala O’Loan has argued that it applies to institutions as well ( In Ireland there are a number of Catholic hospitals committed to a Catholic ethos and culture which is clearly inconsistent with the provision of abortion. Hence, the issue over whether or not an institution can conscientiously object is a pressing one.

A rather simplistic view would be to say that insofar as an institution is not a person, it does not have a conscience, and so cannot avail of conscientious objection. Indeed, one may argue that the notion that an institution can exercise a right that only applies to individuals is absurd. But this is a somewhat simplistic view for the following reason.

Many public institutions adopt a charter which signifies their philosophy and thereby seals that institution with that identity. We don’t have to look too far in the UK to see this to be the case. The NHS was set up with the ideal that the care for the sick and vulnerable is the responsibility of all of society and so should be paid for by society; access to good healthcare should be based on clinical need and not wealth. Hence, UK citizens can avail of health care in any NHS hospital and facility given their needs. If NHS hospitals only provided medical treatment, they would be no different from private hospitals which provide the same. Rather, NHS hospitals provide medical treatment without distinction of material riches, and so they judge that each member of society has as much a right to such treatment as any other. This is a philosophy that many in the medical profession find attractive and indeed will pursue employment in the NHS rather than seek work in the more lucrative private sector. Indeed, such health professionals see a nice accommodation between their paid employment and their general outlook, so that the one tallies with the other.

The free medical care provided by the NHS permits many health professionals to live according to their conscience. And this is not just the case for health professionals; there are many public bodies and institutions which enable the individual members to live in accord with their conscience, e.g. universities, local government, charities etc.  The philosophy characteristic of an institution thereby enables its members to live in accord with their conscience. Accordingly, it is not only important that an institution have a particular philosophy which signifies the culture in the place, but that that philosophy be protected so that the conscience rights of the people working there be protected.

We turn then to the right of conscientious objection, and given that the ethos of an institution is necessary to protect the conscience rights of those who work at that institution, that institution then ought to be able to object to any command contrary to that ethos, and this so as to protect the conscience rights of the individuals who work there. So to go back to the NHS example, the heroic doctor/nurse/midwife who opts for NHS work instead of the more lucrative private work would rightly object to the demand that NHS facilities give preferential treatment to those better off. And the NHS facility as a whole has a right to resist such a mandate in order to protect the rights of those staff who work there because of their belief that when it comes to health material riches should not determine preferential treatment.

In the case of Catholic hospitals then, we have a Catholic ethos which is a pro-life ethos, such that all human life, from conception to natural death, is worthy of respect and to be protected in a medical sense. Medical professionals who have trained in order to uphold that ethos and in turn take on work at such a hospital are exercising their freedom of conscience to pursue good work consistent with pro-life attitudes. The Catholic ethos of the hospital enables them to do that. Hence, if the Catholic ethos of the hospital is threatened, or indeed, if the pro-life value of the hospital is threatened, then the conscience rights of those who hold a pro-life view at that hospital are threatened. It follows that if the Catholic hospital cannot object to a command which undermines its pro-life ethos, then the conscience rights of the medical professionals working there are not being seriously upheld. And indeed this is often the case, since whilst one medical professional can object to direct participation in an abortion, he or she is often required to make a referral or arrangement within the same facility so that the abortion may occur, thereby becoming complicit in the abortion itself. Therefore, it is necessary to allow for institutional conscientious objection so as to enable the conscientious objection of individuals.

Dr Gaven Kerr

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