Abortion conscience clause? To revoke it would be unconstitutional



Whilst Senator Laurence Rossignol calls for suppression of the conscience clause claimed by health professionals refusing to carry out abortions (see Laurence Rossignol in favour of revoking conscience clause for abortion), Jérôme Roux, Associate Professor of Law and Professor of Public Law at Montpellier University, believes that such a measure "would be unconstitutional and would destroy freedom".

 

In fact, for him, abolition of the conscience clause "would, in no uncertain terms, be tantamount to total disregard of the freedom of conscience, which has been protected for many years by the Constitutional Council (decision dated 23 December 1977)", which constitutes "a legal guarantee to respect the freedom of conscience of health professionals". He adds that: "The same also applies to other conscience clauses invoked by scientists who do not wish to contribute to human embryo research or by medical personnel to avoid participation in contraceptive sterilisation procedures.

 

Although, in law, "the freedom of the pregnant woman" provides the basis for the "right to abortion" (decision dated 16 March 2017), it "cannot be exercised to the detriment of the freedom of the practitioner whose conscience dictates that he/she should not perform this act", emphasises the lawyer. The firm stance taken by the Constitutional Council in terms of the conscience clause is even more remarkable "in that it is always very favourable in decisions regarding abortion".

 

To justify the omission of this clause, the senator argues that it "duplicates" another more general provision, which authorises it: "'barring emergencies or cases where the health professional would be failing to do his/her duty for humanity', the principle of non-discrimination in access to care 'does not preclude refusal of care based on a crucial, essential personal or professional requirement in terms of quality, safety or effectiveness of care' (Art. L. 1110-3 of the French Public Health Code)". For Jérôme Roux, "this argument is, however, inadmissible because, while the specific clause like all those of the same kind, fully guarantee the doctor's freedom of conscience by assuring doctors that they will ‘never be forced’ to carry out an abortion, the general clause has only a vary relative scope, due to the dual restriction in terms of 'emergency' on the one hand," and the vague notion of "humanitarian duties" on the other hand.

To those who believe that abortion is "no longer and never has been a matter of conscience" and that "invoking freedom of conscience is now irrelevant", the professor argues that "the embryo or foetus involved in an abortion cannot be assimilated to a bodily organ that has to be removed to cure a disease. Only ideological blindness results in failure to comprehend that abortion terminates a developing human life, the fate of which constitutes an issue of conscience par excellence".


Sources: 

Le Figaro (02/10/2018)