Are cases concerning conscientious objection in the context of healthcare treated as ‘special cases’? This was the key question for discussion at the ACoRN Roundtable 2 in Cardiff in November 2018, at which I was invited to present a paper. In my paper, I discussed the approach of the European Court of Human Rights (ECtHR) to a range of conscientious objection claims under Article 9 – the right to freedom of thought, conscience and religion – of the European Convention on Human Rights (ECHR). I argued that in terms of ECtHR jurisprudence, the short answer to the question of whether conscientious objection claims in the context of healthcare are given ‘special treatment’ by the ECtHR is, to date at least, ‘no’.[i] This post briefly summarises that paper.
Conscientious Objection
‘Conscientious objection’ is often understood synonymously with conscientious objection to military service, but under ECHR Article 9 this is just one of a variety of different ‘types’ of objections made on the basis of conscience (variously referred to as ‘objections’ or ‘refusals’ to act in a way that is contrary to one’s conscience or contrary to one’s religion or belief). To demonstrate that the ECtHR does not treat claims of conscientious objection in healthcare as special cases, it is useful to consider such claims against the broader background of conscientious objection to military service and objections to the payment of tax under Article 9.
Conscientious Objection to Military Service
For many years the ECtHR offered no protection under Article 9 to those who objected to military service or alternative civilian service. From the case of Grandrath v Germany (1966)[ii] onwards, the ECtHR repeatedly stated that Article 9 was ‘irrelevant’ in claims concerning conscientious objection to military service because ECHR Article 4.3.b excludes from the notion of ‘forced labour’ military service or alternative service exacted in place of military service. The turning point in terms of the ECtHR’s approach to such claims did not come until the Grand Chamber’s judgment in Bayatyan v Armenia (2011).[iii]
In Bayatyan the Grand Chamber recognised that since Grandrath there had been considerable development in the recognition of the right to conscientious objection across Europe and, by taking a ‘living instrument’ approach to the ECHR, it explained that Article 9 should no longer be read in the light of Article 4.3.b. For the Grand Chamber, conscientious objection to military service could constitute a manifestation of religion or belief (and therefore gain protection under Article 9) where the objection was motivated by genuine religious beliefs which were ‘in serious and insurmountable conflict with the obligation to perform military service’.[iv] In Baytyan, the Grand Chamber decided that the applicant’s punishment for refusal to perform such service constituted an interference with the right to manifest religion or belief, that the interference was not in accordance with permissible limitations under Article 9.2, and therefore found a violation of Article 9.
The ECtHR has taken the same approach in a number of subsequent cases in which it has found a ‘serious and insurmountable conflict’ between the belief and the obligation to perform military service.
Objections to the Payment of Taxes
The ECtHR has been, and remains, reluctant to offer protection to individuals who have conscientiously objected to paying taxes under Article 9. In the classic case of C v UK (1983),[v] in which Quakers objected to paying the portion of Inland Revenue Tax used for military expenditure, the Commission simply explained that while Article 9 protects the sphere of personal beliefs and religious creeds, and acts linked to such beliefs, it does not always guarantee the right to behave in the public sphere in any way which is dictated by a religion or belief. It observed that the obligation to pay taxes is a general and neutral obligation and has no specific conscientious implications in itself. Furthermore, the Commission explained that Article 9 does not protect a right to refuse to pay certain taxes because a portion may be spent on military expenditure, and so found no violation of Article 9.
In Bouessel du Borg v France (1993),[vi] in which applicants objected to making social security contributions because following a change to abortion laws the cost of some voluntary terminations were covered by social security, the ECtHR took a similar approach. The Court explained that the obligation to pay tax is a general and neutral obligation and does not have any specific impact in terms of conscience. Additionally, Article 9 does not confer a right to invoke convictions in order to oppose the payment of tax or social security contributions. Thus, there was no violation of Article 9.
In terms of objections to church tax payments, the ECtHR has found that this may constitute an interference with the manifestation of religion or belief, but has generally found that such interference is permissible under Article 9.2 and so there is no violation of Article 9 (e.g. Klein v Germany)[vii].
Objections in the Healthcare Context
Unlike conscientious objection to military service and refusals to pay taxes, the ECtHR has not yet addressed many complaints concerning conscientious objection in the healthcare context. However, in the cases it has considered its approach is not markedly different to that in the cases discussed above.
Where individuals have objected to vaccination on the basis of religion or belief, the ECtHR has again explained that while Article 9 protects personal beliefs and religious creeds, and acts linked to such beliefs, it does not always guarantee a right to behave in the public sphere dictated by such a religion or belief, and the term ‘practice’ in the Article does not cover every act that is ‘motivated’ by a religion or belief. In terms of vaccinations specifically, the ECtHR has emphasised that the obligation to undergo vaccination applies to everyone regardless of their religion or belief, and so it does not constitute an interference with Article 9 (see Boffa and 13 Others v San Marino).[viii]
In cases concerning objections by medical professionals in the healthcare context, the ECtHR has adopted a similar approach. In Pichon and Sajous v France (2001),[ix] in which two pharmacists who jointly owned a pharmacy complained about their conviction for refusing to sell contraceptive pills, the ECtHR again explained that Article 9 does not always guarantee a right to behave in the public sphere dictated by belief, and that ‘practice’ does not cover every form of behaviour ‘motivated or inspired by a religion or belief’. With respect to the facts in this case, the ECtHR said that as the sale of contraceptives is legal and ‘occurs on medical prescription nowhere other than a pharmacy’, the applicants could not give precedence to their religious beliefs and impose them on others as a justification for their refusal to sell such products.[x] Furthermore, the applicants were able to manifest their religion or belief outside of work. It therefore deemed their complaint inadmissible.
In Blumberg v Germany,[xi] in which a doctor was dismissed after refusing to conduct a medical examination on his apprentice due to ‘possible bias’ and ‘a moral dilemma’, the ECtHR again repeated its principle concerning behaviour in the public sphere on the basis of religion or belief and the scope of ‘practice’ under Article 9. In this case, however, it made an important distinction and observed that the applicant was not dismissed for his ‘moral dilemma’ but because he refused to perform the examination. For the ECtHR, his moral dilemma did not constitute an ‘expression of a coherent view on a fundamental problem’;[xii] in other words, it did not find that that the action in question was a manifestation, and so the application was inadmissible.
In Eweida v UK,[xiii] the fourth applicant, Gary McFarlane who was a Relate counsellor, was dismissed for refusing to provide psycho-sexual therapy for same-sex couples. He claimed that as a Christian, who believed that homosexual activity is sinful, he could not do anything which ‘endorsed’ such activity. The ECtHR accepted that his objection was directly motivated by his Christian beliefs about marriage and sexual relationships, and that his refusal to provide counselling to same-sex couples was a manifestation of his religion or belief. It thus decided that his dismissal for refusing to provide the service did constitute an interference with this right. In considering whether the interference was legitimate under Article 9.2, the ECtHR found that the applicant had enrolled on a postgraduate training programme in psycho-sexual counselling with the knowledge that Relate operated an equal opportunities policy. Furthermore, it observed that the action taken by Relate with respect to the applicant was aimed at ensuring that the service was provided to clients without discrimination. The ECtHR explained that under Article 9.2 the State can exercise a wide margin of appreciation in deciding where to strike the balance between the rights of applicants who wish to manifest their religion or belief and the aim of employers to secure the rights of others. It concluded that in this case the State had not exceeded its margin of appreciation, and therefore found no violation of Article 9 (alone or in conjunction with Article 14).
Conclusion
This discussion of a sample of cases concerning conscientious objection to military service, objections to the payment of tax, and objections in the healthcare context demonstrate that the ECtHR does not have a standard approach when addressing claims concerning conscientious objection under Article 9. Sometimes the ECtHR has found that the objection in question does not constitute a manifestation of religion or belief for the purposes of Article 9, and therefore deems the complaint inadmissible. In other cases, where it does consider that the objection constitutes a manifestation of religion or belief for the purposes of Article 9, it either finds that there has not been interference with the right to manifest, or, if it does find interference, considers that it is permissible under Article 9.2. Rarely does the ECtHR find that interference constitutes a violation of Article 9.
The point is that the ECtHR can, and does, deploy a variety of approaches in complaints concerning conscientious objection under Article 9. Cases concerning conscientious objection in the healthcare context are not, to date at least, treated as ‘special cases’ by the ECtHR.
Caroline K Roberts, PhD Researcher, University of Bristol.
[i] My research focuses on the development of Article 9 jurisprudence from the 1960’s to present day (available in English and French), in which conscientious objection claims form a small part.
[ii] Grandrath v Germany (1966) 10 YBECHR 626.
[iii] Bayatyan v Armenia ECHR 2011-IV 1.
[iv] Ibid, 4.
[v] C v UK (1983) 37 DR 142.
[vi] Bouessel du Borg v France App no 20747/92 (Commission Decision, 8 February 1993).
[vii] Klein v Germany App no 10138/11 and 3 others (ECtHR, 6 April 2017).
[viii] Boffa and 13 Others v San Marino (1998) 92-B DR 27.
[ix] Pichon and Sajous v France ECHR 2001-X 381.
[x] Ibid, 388.
[xi] Blumberg v Germany App no 14618/03 (ECtHR, 18 March 2008).
[xii] Ibid.
[xiii] Eweida v United Kingdom ECHR 2013-I 215.