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Human Exceptionalism

Life and dignity with Wesley J. Smith.

EU Court Rules Poland Must Ensure Doctors Perform Legal Abortions



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A just released European Court of Human Rights ruling appears to require Poland to squash the conscience rights of doctors who do not wish to be complicit in a legal abortion.

First, the awful facts: A14-year-old girl (“P”) was raped and impregnated. She and her mother (“S”) wanted an abortion. Abortion is generally illegal in Poland, but legal for rape. The family obtained a prosecutor’s certificate allowing the abortion, as required by law.

But two hospitals refused and the case became the subject of public pressure.  Action was instituted, later dropped, to have the parental rights removed for allegedly forcing the abortion on P.  P was also investigated for having sexual intercourse with a minor (the father of the child, I presume). The hospital appears to have released information sufficient to allow the girl to be identified. The girl finally traveled far from home and obtained the termination. 

All in all, ugly stuff. The family sued and the court awarded damages against Poland.

I don’t want to get into those issues–for which damages could certainly be appropriate–but the coercive aspect of the ruling that would seem to require EU countries to guarantee receipt of a legal abortion on demand. From P and S v. Poland:

As regards the complaint concerning the lack of unhindered access to abortion, the Court observed that the Polish Government had referred to the right of physicians under Article 9 of the Convention (freedom of thought, conscience and religion) to refuse certain services on grounds of conscience. However, States were obliged to organise their health system in a way that the exercise of that right did not prevent patients from obtaining access to services to which they were entitled by law.

Whoa. Legality is one thing, but a guaranteed abortion, even if doctors don’t want to do it? In other words, is there a positive right in the EU to actually receive the abortion, as distinguished from having a legal right to request it? Apparently so:

Polish law in principle provided for mechanisms to reconcile doctors’ right to conscientious objection with patients’ interests, in particular by obliging the doctor to refer the patient to another physician carrying out the same service. However, it had not been shown that those requirements had been complied with in P.’s case. The medical staff had not considered themselves obliged to carry out the abortion expressly requested by the applicants.

If I am reading this case correctly, the Court has ruled that Poland must make doctors complicit in a legal abortion–either by doing it or finding a doctor who will–as a condition of licensure. That is the express law in Victoria, Australia, which doesn’t restrict the reasons for terminations. Now, apparently, in the EU too. 

Imagine: Required to take–or facilitate the taking of–human life as a doctor. Don’t think the same thing couldn’t happen here. Pressures are building to do away with conscience protections in USA.

Nor will the coercion end with abortion. Assisted suicide comes to mind. The culture of death will not be denied, which is why the rights of medical conscience will be a huge bioethical flash point in the coming decade.



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