Conscientious objection in reproductive health care: Analysis of Pichon and Sajous v. France

European Journal of Health Law

Volumn 15, Issue 1, 2008, Pages 7-43

  Lamačková, Adriana ^a  

^a NONE

Author keywords

Conscientious objection; Health professionals; Sexual and reproductive health; Women's rights

Indexed keywords

CONSCIENCE; FREEDOM; HEALTH CARE ACCESS; HEALTH CARE POLICY; HEALTH PERSONNEL ATTITUDE; LAW; PATIENT DECISION MAKING; RELIGION; REPRODUCTIVE HEALTH; REVIEW; SEXUAL HEALTH; WOMEN'S HEALTH;

CONTRACEPTIVES, ORAL; FRANCE; HUMANS; PHARMACISTS; REFUSAL TO TREAT;

EID: 44349186670     PISSN: 09290273     EISSN: 15718093     Source Type: Journal    
DOI: 10.1163/092902708X300172     Document Type: Review

References (215)

1. Pichon and Sajous v. France (2001), App. No. 49853/99, Eur. Ct. H.R. 2001-X, decision on admissibility, [Pichon and Sajous].
2. Ibid. at 4.
3. UN, Committee on the Elimination of Discrimination against Women, "General Recommendation No. 24, Women and Health (Article 12)", (20th Sess. 1999) in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies U.N. Doc. HRI/GEN/1/Rev.7 (2004) at paras. 21, 23. [UN, CEDAW Committee, "General Recommendation No. 24"].
4. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S.5. [the Convention].
5. UN, Human Rights Committee, "General Comment No. 22: The right to freedom of thought, conscience and religion (Article 18)", (48th Sess. 1993), in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies U.N. Doc. HRI/GEN/1/Rev.7 (2004) [UN, HRC: "General Comment No. 22"]. Article 18(1) of the International Covenant on Civil and Political Rights [ICCPR] reads: "1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching."
6. UN, HRC: "General Comment No. 22", ibid. at para. 11.
7. Mr. Wennergren proposed that apart from conscientious objection to military service other kinds of conscientious objection should be addressed in the general comment to Article 18, namely the situations when state employees refuse to perform duties which are against their personal beliefs, including doctors called upon to perform abortions in state hospitals. Mr. Dimitrijevic argued that the more general aspects of matters of conscience were covered by paragraph 8 of the general comment, which explained that only justified restrictions might be applied. Therefore, he argued, "[i]f for example a doctor had serious misgivings in following a particular procedure on grounds of conscience, his right to refuse could be restricted, if the Government saw fit, on one of the grounds listed in article 18(3), i.e. public safety, order, health or morals." HRC, Summary record of the 1237th meeting, 19 July 1993, CCPR/C/SR.1237, paras. 25, 44. cited in European Union Network of Independent Experts on Fundamental Rights, Opinion No. 4-2005: The Right to Conscientious Objection and The Conclusion by EU Member States of Concordats with the Holy See, 14 December 2005, CFR-CDF.Opinion 4-2005.doc. at 16 [EU Network of Independent Experts, "Opinion No. 4-2005"].
8. Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, Res. 34/180 (entered into force 3 September 1981) [CEDAW].
9. UN, CEDAW Committee, "General Recommendation No. 24", supra note 3 at para. 11.
10. EU, European Parliament, Resolution on sexual and reproductive health and rights (2001/2128 (INI)), 6 June 2002, A5-0223/2002 at 9.
11. This article considers such measures in greater detail below.
12. EU Network of Independent Experts, "Opinion No. 4-2005", supra note 7 at 15.
13. The Ministry of Justice of the Slovak Republic, The Draft Treaty between the Slovak Republic and the Holy See on the Right to Exercise the Objections of Conscience, May 2005.
14. EU Network of Independent Experts, "Opinion No. 4-2005", supra note 7 at 20.
15. The Convention, supra note 4.
16. Article 4(3)(b) of the Convention, ibid., reads: "(3) For the purposes of this Article the term 'forced or compulsory labour' shall not include: [. . .] (b) any service of a military character or, in the case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service."
17. Pieter van Dijk & Godefridus J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed. (Hague: Kluwer Law International, 1998) at 545.
18. Carolyn Evans, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001) at 200.
19. Ibid.
20. Ibid. at 50, 200.
21. See e.g. X v. The Netherlands (1965), Eur. Comm. H.R., App. No. 2065/63, 8 Y.B. Eur. Conv. on H.R. 266 (Eur. Comm'n) (1965) (case related to paying compulsory insurance);
22. X v. Austria (1965), App. No. 1753/63, Eur. Comm. H.R., 8 Y.B. Eur. Conv. H.R. 174 (case related to compulsory voting laws);
23. Gottesmann v. Switzerland (1984), App. No. 10616/83, 40 Eur. Comm. H.R. Dec. & Rep. 284 (1984) (case related to making tax payments to churches);
24. See also van Dijk & van Hoof, supra note 17 at 545. T. Jeremy Gunn, "Adjudicating Rights of Conscience under the European Convention on Human Rights", in Johan D. van der Vyver and John Witte, Jr. (eds.), Religious Human Rights in Global Perspective: Legal Perspectives (Hague: Martinus Nijhoff Publishers, 1996) 305-30, [Gunn, "Adjudicating Rights of Conscience"] at 311.
25. Gunn: "Adjudicating Rights of Conscience", ibid. at 313-4.
26. Ibid. at 314. Gunn discusses the Arrowsmith case. Arrowsmith v. the United Kingdom (1978), App. No. 7050/75, Eur.Comm.H.R., 3 E.H.H.R. 218. Pat Arrowsmith was a pacifist who claimed a violation of Article 9 of the Convention because she was prohibited from distributing leaflets that advocated a pacifist view against British troops serving in Northern Ireland.
27. Ibid. at 314.
28. Thlimmenos v. Greece (1998), App. No. 34369/97, Eur. Comm.H.R. (report). This case centered on the fact that Mr. Thlimmenos had not been appointed as a chartered accountant as a result of his previous conviction for refusing to enlist in the armed forces because it contravened his religious beliefs. As a consequence, he complained that the refusal to appoint him as a chartered accountant resulted in a breach of Article 9. In addition, he claimed a violation of his right to non-discrimination (Article 14) in conjunction with his freedom of religion (Article 9) as a result of his original conviction for refusing to enlist in the military. The Commission found a violation of Article 9 in conjunction with Article 14 and held that it would be unnecessary to decide on whether there was a violation of Article 9 itself. At paras. 36, 51-2.
29. Ibid. at paras. 45-6.
30. Ibid. at para. 46. The applicant did not challenge the original conviction, but only the refusal of the authorities to appoint him to a post of chartered accountant. While neither the Commission nor the Court interpreted Article 9 as providing for the right to conscientious objection, they accepted that conscientious objection to military service falls within the scope of Article 9. However, they reached this conclusion only in cases where applicants claimed a violation of Article 9 in conjunction with Article 14.
31. van Dijk & van Hoof, supra note 17 at 543.
32. Ibid. citing Reformed Church of X v. the Netherlands, App. 1497/62, Yearbook V (1962), p. 286 (297);
33. X v. the Netherlands, Yearbook X (1967), p. 472 (476).
34. Ibid.
35. Ibid.
36. For detailed overview of the European Union Member States that provide for conscientious objection in health care see EU Network of Independent Experts, "Opinion No. 4-2005", supra note 7 at 8-14.
37. Act concerning Termination of Pregnancy, 13 June 1975 (No. 50) with Amendments in the Act dated 16 June 1978 (No. 5, No. 66) (Norway), s. 20.
38. Ibid.
39. Ibid.
40. UK Statutes 1967, ch. 87 as amended, cited in Rebecca J. Cook, Bernard M. Dickens and Mahmoud F. Fathalla, Reproductive Health and Human Rights, Integrating Medicine, Ethics and Law (New York: Oxford University Press, 2003) at 214.
41. EU Network of Independent Experts, "Opinion No. 4-2005", supra note 7 at 9-14.
42. Ibid. at 14.
43. Ley De Cantabria 7/2001, De 19 De Diciembre, De Ordenación Farmacéutica De Cantabria. Ley 8/1998, de 16 de junio, de Ordenación Farmacéutica de la Comunidad Autónoma de La Rioja. See also ibid. at 13.
44. The Slovak Ethical Code of the Health Practitioner allows health practitioners (physicians, nurses, pharmacists, medical assistants, etc.) to refuse to perform or participate in a medical procedure that is against their conscience with the exception of the direct endangerment of the life or health of persons. If a health practitioner has a conscientious objection to certain products or services, he/she must inform his/her employer of this and also his/her patients if invoking conscientious objection in the context of the provision of health care. Ethical Code of the Health Practitioner, Annex No. 4 to the Act on Health Care Providers, Health Practitioners and Professional Health Care Organizations, No. 578/2004 Coll. as amended.
45. EU Network of Independent Experts, "Opinion No. 4-2005", supra note 7 at 16.
46. Pichon and Sajous, supra note 1.
47. Ibid. at 4.
48. Gunn, "Adjudicating Rights of Conscience", supra note 21 at 314.
49. Pichon and Sajous, supra note 1 at 4. For debate about forum internum in the Court's jurisprudence, see e.g. Evans, supra note 18 at 72-4. Evans explains that the Court applies this term without closer specification of its scope.
50. Pichon and Sajous, ibid.
51. Ibid.
52. Ibid.
53. Ibid.
54. Ibid.
55. Article 9(2) of the Convention, supra note 4, reads: "Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health and morals, or for the protection of the rights and freedoms of others."
56. See e.g. X. v. the United Kingdom (1981), App. No. 8160/78, 22 D&R 27 [X. v. UK ]; Karaduman v. Turkey (1993), App. No. 16278/90, Eur. Comm. H.R., D.R. 74; Kalac v. Turkey (1997), 41 Eur. Ct. H.R. (ser. A) 1199.
57. X. v. UK , ibid.
58. Ibid. at paras. 9, 14.
59. Gerard Quinn, "Scope and limits of conscientious objections: Conscientious objection in labour relations (civil service and liberal professions)", in Council of Europe, Freedom of Conscience (Strasbourg: Council of Europe Press, 1993) 107-22,
60. [Quinn, "Scope and limits of conscientious objections"] at 116-9. See also X. v. Denmark (1976), Eur. Comm. H.R., 5 D&R 157.
61. Evans, supra note 18 at 130-31.
62. Quinn, "Scope and limits of conscientious objections", supra note 55 at 117.
63. See also Evans, ibid. at 131.
64. David M. Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) at 171-2.
65. Ibid. at 171. According to Beatty the principle of proportionality provides for the most objective and integral model of judicial review. It enables the judges to focus on the conflicts as "matters of fact, rather than matters of interpretation, or matters of moral principle." at 171.
66. Ibid. at 169, 173.
67. Pieter van Dijk, Fried van Hoof, Arjen van Rijn, Leo Zwaak (eds.), Theory and Practice of the European Convention on Human Rights, 4th ed. (Antwerpen-Oxford: Intersentia, 2006) at 333-42.
68. Leyla Sahin v. Turkey (2004, 2005), App. No. 44774/98, Eur. Ct.H.R. 299 [Sahin] at paras. 84-98.
69. See e.g. Sunday Times v. the United Kingdom (1979), 30 Eur. Ct. H.R. (Ser. A); Casado Coca v. Spain (1994), 285-A Eur. Ct. H.R. (Ser. A); Sahin, ibid.
70. Sahin, ibid. at paras. 88, 91. The Court by referring to its previous jurisprudence stated that "'[l]aw' must be understood to include both statutory law and judge-made 'law'." at para. 88. The Court further explained that "the scope of the notion of forseeability depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed." at para. 91; see also at para. 84.
71. Sahin, ibid. Case of Refah Partisi (The Welfare Party) and Others v. Turkey (2003), App. Nos. 41340/98, 41342/98, 41343/98 and 41344/98, Eur. Ct. H.R., CEDH/ECHR 2003-II [Refah Partisi], Dahlab v. Switzerland (2001), App. No. 42393/98, Eur. Ct.H.R., CEDH/ECHR 2001-V [Dahlab].
72. Lindholm, Tore, "Comments on the Case of Leyla Sahin v. Turkey: Political and Public Morality Aspects", Conference paper, The Strasbourg Conference: A Forum on Freedom of Religion or Belief (2005), online: Strasbourg Conference 〈http://www.strasbourgconference.org〉 (date accessed: April 2006).
73. Evans, supra note 18 at 208.
74. Refah Partisi, supra note 65, Dahlab, supra note 65, Sahin supra note 62.
75. Pichon and Sajous, supra note 1 at 2.
76. Ibid.
77. Pichon and Sajous, supra note 1 at 3.
78. Ibid.
79. See e.g. Dahlab, supra note 65, Sahin, supra note 62.
80. See e.g. ibid.
81. Evans, supra note 18 at 147-9.
82. See e.g. van Dijk, van Hoof, van Rijn & Zwaak, supra note 61, at 340.
83. See e.g. Sahin, supra note 62 at para. 117.
84. See e.g. ibid. at para. 115.
85. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, G.A. Res. 2200A (XXI) (entered into force 3 January 1976) [ICESCR].
86. Convention on the Rights of the Child, 20 November 1989, G.A. Res. 44/25 (entered into force 2 September 1990) [CRC].
87. Beijing Declaration and Platform for Action of the Fourth World Conference on Women, 17 October 1995, UN Doc A/CONF. 177/20.
88. UN, Population and Development, i. Programme of Action adopted at the International Conference on Population and Development, Cairo, 5-13 September 1994 (New York: United Nations, Department for Economic and Social Information and Policy Analysis, ST/ESA/SER.A/149, 1994). [ICPD Programme of Action].
89. Human rights and fundamental freedoms guaranteed by the European Convention that engage sexual and reproductive interests include the right to life (Article 2), the right to be free from torture, inhuman or degrading treatment or punishment (Article 3), the right to liberty and security (Article 5), the right to respect for private and family life (Article 8), freedom of thought, conscience and religion (Article 9), freedom of expression (Article 10), freedom of association (Article 11), the right to marry (Article 12), the right to non-discrimination (Article 14 and Protocol 12), and the right to education (Protocol 1 Article 2).
90. Rebecca J. Cook, "Human Rights and Reproductive Self- Determination" (1994-1995) 44 Am. U.L. Rev. 975 at 979
91. [Cook: "Human Rights and Reproductive Self-Determination"].
92. Ibid.
93. Katharine T. Bartlett, "Feminist Legal Methods" (1989-1990) 103 Harv. L. Rev. 829 [Bartlett, "Feminist Legal Methods"].
94. For detailed analysis of the application of the feminist legal methods on the issue of pharmacists' conscientious objections see Claire A. Smearman, "Drawing the Line: The Legal, Ethical and Public Policy Implications of Refusal Clauses for Pharmacists" (2006) 48 Ariz. L. Rev. 469 at 492-507
95. [Smearman, "Drawing the Line"].
96. Bartlett, "Feminist Legal Methods", ibid. at 837.
97. Ibid. at 846.
98. Ibid. at 851.
99. Ibid. at 866. See also Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989) at 83-105.
100. Beatty, supra note 58 at 169, 173; Bartlett, "Feminist Legal Methods", ibid. at 861.
101. Council of Europe, Explanatory report to Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 177, online: Council of Europe 〈http://conventions.coe. int/treaty/en/Reports/Html/177.htm〉 (date accessed: 30 July 2006) [Council of Europe, "Explanatory report"].
102. Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms was opened for signature on 4 November 2000. It entered into force on 1 April 2005. Total number of ratifications as of 29 February 2008: 16 states. ["Protocol No. 12"].
103. Council of Europe, "Explanatory report", supra note 92 at para. 21.
104. Article 1(1) of the Protocol No. 12, supra note 93.
105. However, as the Explanatory report explains the fact that the term law includes international law ". . . does not mean that this provision entails jurisdiction for the European Court of Human Rights to examine compliance with rules of law in other international instruments.", supra note 92 at para. 29.
106. The CEDAW, supra note 8, Article 16(1)(e).
107. Rebecca J. Cook, "Exploring fairness in health care reform" (2004) Journal for Juridical Science 29(3): 1-27 at 22.
108. See generally Lesley Doyal, "Gender equity in health: debates and dilemmas" (2000) Social Science & Medicine 51 931-939, at 933 [Doyal, "Gender equity in health"].
109. UN, CEDAW Committee, "General Recommendation No. 24", supra note 3 at para. 12.
110. See e.g. UN, Committee on the Elimination of Discrimination against Women, "General Recommendation No. 25, temporary special measures (Article 4(1))", (30th Sess. 2004) in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies U.N. Doc. HRI/GEN/1/Rev.7 (2004).
111. Thlimmenos v. Greece (2000), App. No. 34369/97, Eur. Ct. H. R., CEDH/ECHR 2000-IV.
112. Ibid. at para. 44.
113. See e.g. Eileen V. Fegan and Rachel Rebouche, "Northern Ireland's Abortion Law: The Morality of Silence and The Censure of Agency" (2003) Feminist Legal Studies 11: 221-254 (Discusses the ineffectiveness of the Northern Irish abortion law and ignorance of women's agency in the legal and cultural debate around abortion in Northern Ireland.);
114. Siobhán Mullally, "Debating Reproductive Rights in Ireland" (2005) Human Rights Quarterly 27 at 78-104 (Mullally examines "the struggle for reproductive autonomy within the context of the abortion debate in Ireland, where reproductive rights have often been portrayed as hostile to cultural and national sovereignty.");
115. Polish Federation for Woman and Family Planning, The anti-abortion act in Poland, The Functioning, Social Consequences, Attitudes and Behaviours (Warsaw: PFWFP, September 2000), online: PFWFP 〈http://www.federa.org.pl/ publikacje/raporty/aborcja2000/index.htm〉 cited in EU Network of Independent Experts, "Opinion No. 4-2005", supra note 7 at 18
116. [Polish Federation for Woman and Family Planning: "The anti-abortion act in Poland"].
117. EU Network of Independent Experts, "Opinion No. 4-2005", ibid.
118. Polish Federation for Woman and Family Planning, "The anti-abortion act in Poland", supra note 104.
119. Cook, "Human Rights and Reproductive Self-determination" supra note 84 at 1007.
120. For identification of the Convention's substantive rights clustered around reproductive interests see supra note 83.
121. Open Door and Dublin Well Woman v. Ireland (1992), App. Nos. 14234/88, 14235/88, 246-A Eur. Ct. H.R. (Ser.A) [Open Door and Dublin Well Woman]. (The applicants, representatives of two Dublin women's health clinics, claimed gender discrimination in the enjoyment of the right to private life caused by the injunction that prohibited distribution of information on abortion available outside of the country. They based their claim on the fact that "men were not denied information 'critical to their reproductive and health choices.'") at para. 81.
122. UN, CEDAW Committee, "General Recommendation No. 24", supra note 3 at para. 11.
123. Doyal, "Gender equity in health", supra note 99 at 933.
124. Ibid.
125. Pretty v. the United Kingdom (2002), App. No. 2346/02, Eur.Ct.H.R., CEDH/ECHR 2002-III [Pretty]; Mikulic v. Croatia (2002), App. No. 53176/99, Eur.Ct.H.R., CEDH/ECHR 2001-I.
126. X. and Y. v.The Netherlands (1985), App. No. 00008978/80, 91 Eur. Ct. H.R. (Ser. A) at para. 23 [X. and Y.]; Tysia̧c v. Poland (2007), App. No. 5410/03, Eur.Ct.H.R. at para. 110 [Tysia̧c].
127. Ibid.
128. See e.g. Pretty, supra note 113 at para. 61; Tysia̧c, ibid. at para. 130.
129. X. and Y., supra note 114 at para. 22; Y.F. v. Turkey (2003), App. No. 24209/94, Eur.Ct.H.R., CEDH/ECHR 2003-IX.
130. Pan American Health Organization WHO, Promotion of Sexual Health: Recommendations for Action - Proceedings of a Regional Consultation Convened by PAHO/WHO in Collaboration with the World Association for Sexology, Antigua Guatemala, Guatemala, May 19-22, 2000, (Washington, D.C.: PAHO, 2001), online: PAHO 〈http://www.paho.org/English/HCP/HCA/PromotionSexualHealth.pdf〈 (date accessed 20 August 2007) cited in Cook, Dickens & Fathalla, supra note 36 at 174.
131. Pan American Health Organization WHO, ibid. at 6, cited in Cook, Dickens & Fathalla, ibid. at 175.
132. ICPD Programme of Action, supra note 82.
133. Ibid. at para. 7.2.
134. Article 16(1)(e) of the CEDAW, supra note 8, reads: "1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: [. . .] (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights."
135. Rebecca J. Cook, "International Protection of Women's Reproductive Rights" (1991-1992) 24 N.Y.U.J. Int'l L. & Pol. 645 at 696.
136. Tysia̧c, supra note 114. (The applicant, Alicja Tysia̧c, has suffered from serious eyesight complications as a result of carrying her pregnancy to the term after being denied therapeutic abortion that is legal in Poland.). See also Center for Reproductive Rights, "Written Comments to the European Court of Human Rights, case Tysia̧c v. Poland, Application No. 5410/03" 21 September 2005, available at http://www. reproductiverights.org/pdf/AmicusECHR.92005.pdf.
137. Tysia̧c, ibid. at paras. 117-8.
138. Article 5(1) of the Convention, supra note 4, reads: "(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: [. . .]."
139. See e.g. East African Asians v. United Kingdom (1978), App. No. 4626/70 and others, Eur.Comm. H.R., decision of 6 March 1978 on admissibility of the application, 78-A D.R. 5.
140. Karen Reid, A Practitioner's Guide to the European Convention on Human Rights, 2nd ed. (London: Sweet & Maxwell Ltd, 2004) at 241.
141. Ibid.
142. R. v. Morgentaler (1988), 44 DLR (4th) 385 (Supreme Court of Canada).
143. Ibid. at para. 243.
144. Ibid.
145. Global Health Council, Promises to Keep: The Toll of Unintended Pregnancies On Women's Lives in the Developing World 7 (Washington, D.C.: Global Health Council, 2002), online: Global Health Council, available at http://www.globalhealth.org/assets/publications/PromisesToKeep.doc.
146. WHO, Unsafe Abortion: Global and Regional Estimates of Incidence of and Mortality due to Unsafe Abortion with a Listing of Available Country Data (Geneva: WHO, 3rd ed., 1997) in Cook, Dickens & Fathalla, supra note 36 at 26-7.
147. Donald W. Herbe, "The Right to Refuse: A Call for Adequate Protection of A Pharmacist's Right to Refuse Facilitation of Abortion and Emergency Contraception" (2002-2003) 17 J.L. & Health 77 at 85
148. [Herbe, "The Right to Refuse"].
149. International Federation of Gynecology and Obstetrics (FIGO), "Ethical Aspects of Induced Abortion for Non-Medical Reasons" (1998) at para. 11 in: FIGO, Recommendations on Ethical Issues in Obstetrics and Gynecology by the FIGO Committee for the Ethical Aspects of Human Reproduction and Women's Health (London: FIGO, 2003) 62-5.
150. National Advisory Committee on Emergency Contraception (NACEC), BACKGROUNDER, (Canada: NACEC, 2003) online: NACEC 〈http://www. pharmacists.ca/content/about_cpha/whats_happening/cpha_in_action/pdf/ NACEC_ECPbackgrounder.pdf#search= %22WHO%2C%20Emergency%20Contraception%2C%20A%20Guide%20for%20Service%20 Delivery%22〉 (date accessed: 15 August 2006).
151. See also WHO, Emergency contraception. A guide for service delivery. (Geneva: WHO, 1998).
152. Joanna N. Erdman and Rebecca J. Cook, "Protecting Fairness in Women's Health: The Case of Emergency Contraception" in Colleen M. Flood (ed.), Just Medicare: What's In, What's Out, How We Decide (Toronto: University of Toronto Press, 2006) 137-67, at 138, 137.
153. FIGO, "Guidelines in Emergency Contraception" (2001) at para. 3 (Recomm.) in FIGO, supra note 136, 65-6.
154. See e.g. Tysia̧c, supra note 114 and 124. See also Center for Reproductive Rights, "Written Comments to the European Court of Human Rights, case Tysia̧c v. Poland, Application No. 5410/03" supra note 124.
155. See supra note 122 and accompanying text.
156. Cook, Dickens & Fathalla supra note 36 at 210.
157. Reid, supra note 128 at 336. See also Guerra and Others v. Italy (1998), R.J.D. 1998-I, No. 64, Eur. Ct. H. R. at para. 53. In Guerra and Others the Court has interpreted freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, as "prohibit[ing] a government from restricting a person from receiving information that others wish or may be willing to impart to him". The Court refused to impose on the government the positive obligations to collect and disseminate information of its own motion. Article 10 of the Convention, supra note 4, reads: "(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. [. . .]. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, [. . .]."
158. Open Door and Dublin Well Woman, supra note 109.
159. Ibid. at para. 9-28.
160. Ibid. at para. 77.
161. Ibid.
162. Ibid. at para. 72.
163. S. Coliver, "The Right to information necessary for Reproductive Health and Choice Under International Law" in S. Coliver, The Right to Know: Human Rights and Access to Reproductive Health Information (London and Philadelphia: Article 19 and University of Pennsylvania Press, 1995) cited in Cook, Dickens & Fathalla, supra note 36 at 210.
164. UN, CEDAW Committee, "General Recommendation No. 24", supra note 3 at para. 20.
165. Ibid.
166. Ibid. at para. 18.
167. See e.g. Smearman, "Drawing the Line", supra note 86 at 482.
168. Ibid. at 481-4. Smearman explains that "[i]n 1998, thirty-eight years after [the Food and Drug Administration] first approved oral contraceptives for prescription use, only fifteen percent of traditional insurance indemnity plans covered all of the prescription contraceptives most commonly used by women, and forty-nine percent of plans covered none of them". Less than two months after Viagra was introduced to the market in 1998, "almost half of all Viagra prescriptions were covered by insurance plans." at 481-2.
169. Cook, Dickens & Fathalla, supra note 36 at 213.
170. See e.g. van Dijk, van Hoof, van Rijn & Zwaak, supra note 61 at 340.
171. Gunn, "Adjudicating Rights of Conscience", supra note 21 at 325-6.
172. Ibid.
173. See e.g. Case of Otto-Preminger-Institute v. Austria (1994), App. No. 13470/87, Eur.Ct.H.R.
174. Dahlab, supra note 65 at 12. For discussion on the margin of appreciation principle see e.g. Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Oxford: Intersentia, 2002);
175. Thomas A. O'Donnell, "The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights" (1982) 4 Human Rights Quarterly 474.
176. Dahlab, ibid.
177. See e.g. Catharine A. MacKinnon, Are Women Human?: And Other International Dialogues (Cambridge: Harvard University Press, 2006).
178. Ibid. See also Catharine A. MacKinnon, Women's Lives, Men's Laws (Cambridge: Harvard University Press, 2005).
179. See especially UN, Committee on Economic, Social and Cultural Rights, "General Comment 14: The Right to the Highest Attainable Standard of Health Art. 12", (22nd Sess. 2000), in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies U.N. Doc. HRI/GEN/1/Rev 5 (2001) [CESCR Committee, "General Comment No. 14"]. UN, CEDAW Committee, "General Recommendation No. 24", supra note 3.
180. CESCR Committee, "General Comment No. 14", ibid. at para. 12.
181. Ibid.
182. ICESCR, supra note 79, Article 12(1) reads: "The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."
183. CESCR Committee, "General Comment No. 14", supra note 164 at paras. 36, 37, 43.
184. Ibid. at para. 51.
185. Ibid.
186. UN, CEDAW Committee, "General Recommendation No. 24", supra note 3 at paras. 21, 29.
187. Ibid. at para. 11.
188. See e.g. Adam Sonfield, "Rights vs. Responsibilities: Professional Standards and Provider Refusals", The Guttmacher Report on Public Policy, August 2005;
189. R. Alta Charo, "Health Care Provider Refusals to Treat, Prescribe, Refer or Inform: Professionalism and Conscience", American Constitution Society for Law and Policy, February 2007
190. [Charo, "Health Care Provider Refusals to Treat, Prescribe, Refer or Inform"].
191. See generally Smearman, "Drawing the Line", supra note 86 at 507.
192. Charo, "Health Care Provider Refusals to Treat, Prescribe, Refer or Inform", supra note 173 at 13.
193. See e.g. Bernard M. Dickens, "Conscientious Objection: A Shield or a Sword?" in Sheila A.M. McLean (ed.), First Do No Harm: Law, Ethics and Healthcare. (Aldershot: Ashgate, 2006) at 337-51
194. [Dickens, "Conscientious Objection: A Shield or a Sword?"].
195. Holly Teliska, "Obstacles to Access: How Pharmacist Refusal Clauses Undermine the Basic Health Care Needs of Rural and Low-Income Women" (2005) 20 Berkley J. Gender L. & Just. 229 at 233-5
196. [Teliska, "Obstacles to Access"].
197. See e.g. Charo, "Health Care Provider Refusals to Treat, Prescribe, Refer or Inform", supra note 173 at 2. Charo points out that traditionally almost all states in the United States provided for some conscientious objections clause to abortion. However, "in recent years with the abortion debate increasingly at the center of wider discussions about contraception, end of life care, assisted suicide, genetic screening, reproductive technologies, and embryonic stem-cell research, nurses and pharmacists have begun demanding the same right of refusal."
198. The British Medical Association, for example, allows doctors to refuse to prescribe contraception; however, this is on the condition that they refer the woman to a non-objecting provider. In Spain, the autonomous communities of Cantabria and La Rioja have adopted laws that enable pharmacists to refuse to fulfill their professional duties where it does not threaten the patient's rights (Cantabria) or the health of the patient (La Rioja). See supra note 39. See also the Slovak Ethical Code of the Health Practitioner, supra note 40.
199. See generally Herbe, "The Right to Refuse", supra note 135 at 86.
200. See generally Smearman,, " Drawing the Line", supra note 86 at 497-500.
201. Herbe, "The Right to Refuse", supra note 135 at 85.
202. See supra notes 136-7 and accompanying text.
203. World Medical Association, Declaration on the Rights of the Patient, adopted by the 34th World Medical Assembly, Lisbon, Portugal, September/October 1981, as amended in 1995 and editorially revised in 2005, at para. 1f.
204. FIGO, Committee for the Ethical Aspects of Human Reproduction & Women's Health, Ethical Guidelines on Conscientious Objection. (London: FIGO, August 2005), at para. 1.
205. Charles D. Hepler, "Balancing Pharmacists' Conscientious Objections With Their Duty to Serve", J Am Pharm Assoc. 2005, 45(4):434-436.
206. See also ibid.
207. See generally Smearman, "Drawing the Line", supra note 86 at 507-10.
208. Susan A. Cohen, "Objections, Confusion Among Pharmacists Threaten Access To Emergency Contraception", in The Guttmacher Report on Public Policy, (New York: Guttmacher Institute, 1999) at 2, online: Guttmacher Institute 〈http://www.guttmacher.org/pubs/tgr/02/3/index.html〉 (date accessed: 1 July 2006).
209. Ibid. See also Smearman, "Drawing the Line", supra note 86 at 509. Smearman notes that courts in the US "generally have recognized a pharmacist's duty to exercise due care and diligence in the discharge of their professional duties.". She further
210. Dickens, "Conscientious Objection: A Shield or a Sword?", supra note 176 at 347. Dickens explains that ". . . the deliberate withholding of information about a patient's option of abortion, sterilisation, or, for instance, emergency contraception, and of information about an alternative provider of a service a patient requests but that the physician refuses to provide on grounds of conscience, even when legally protected by a refusal clause, remains medical professional misconduct."
211. Cook, Dickens & Fathalla, supra note 36 at 109-15.
212. See supra notes 33-5 and accompanying text.
213. See generally Teliska, "Obstacles to Access", supra note 177.
214. Smearman explains that in the US the referral to another pharmacy is generally unworkable as ". . . many objecting pharmacists also refuse to transfer contraceptive prescriptions as well to fill them." Smearman, "Drawing the Line", supra note 86 at 537.
215. The American College of Obstetricians and Gynecologists, Women's Health Care Physicians, "The Limits of Conscientious Refusal in Reproductive Medicine", Committee Opinion, No. 385, November 2007.