There has been continuing political controversy
concerning the obligations imposed on hospitals by the Protection of
Life during Pregnancy Act.
An earlier draft of the Bill prohibited
hospitals from refusing to perform legal abortions, while allowing
conscientious objection for individuals.
However,
while the individual right of objection remains, the legislation says
nothing about institutional opt-outs (the Government decided such a
provision was unnecessary). Instead, the Act lists “appropriate
institutions” in which legal abortions may be carried out – including
two Dublin voluntary Catholic hospitals.
It is
open to debate whether the named hospitals are positively obliged to
provide lawful abortions or simply permitted to do so, whether under the
recent statute or more generally.
In any event, a member of the Mater
hospital’s board of governors recently asserted that its ethos prevented
it from providing such procedures, despite being designated by the Act
as an appropriate institution.
Some commentators have suggested that the
Constitution protects voluntary hospitals from being forced to provide
medical procedures that undermine their religious ethos.
If correct, this would mean that certain provisions of the
Act would either be unconstitutional or interpreted restrictively so as
to allow voluntary hospitals to refuse the relevant procedures.
However, I believe these arguments are based on an over-broad
interpretation of the relevant constitutional principles.
Denominational autonomy
The Constitution protects religious freedom for individuals and states that a religious denomination will “have the right to manage its own affairs . . . and maintain institutions for religious or charitable purposes”.
Sometimes denominational autonomy is interpreted as meaning that
legislation cannot impose requirements inconsistent with the ethos of
denominationally owned institutions.
For example, it has been assumed
that the Constitution requires denominational schools to be exempted
from certain aspects of employment equality legislation, despite the
public function such schools fulfil.
Indeed, this same piece of
constitutional mythology underlies the grotesque spectacle of publicly
funded schools requiring baptismal certificates as a condition of
enrolment.
In this view, religious freedom means
that legislation, whether in the area of equality law or otherwise,
cannot undermine the ethos of denominational institutions, whether
medical or educational. However, while this constitutional rationale is
questionable as it applies to denominational schools, it is even weaker
in relation to voluntary hospitals.
First, it has
never been recognised that religious freedom entitles individuals or
institutions to exemptions from legislative obligations simply because
such obligations are inconsistent with religious beliefs – at least
where such requirements have no bearing on religious practice.
While the
Supreme Court has not adopted a conclusive stance concerning religious
exemptions from legislation, the European Court of Human Rights in
Strasbourg, for example, has consistently affirmed that religious
freedom will not necessarily entitle individuals to exercise beliefs in
professional or public service contexts.
Secondly, denominational autonomy guarantees an
extensive sphere of noninterference for the internal functioning of
religious denominations, but a more qualified protection for activities
denominational-ethos institutions might undertake in the wider public
world.
While legislation cannot interfere in the
inner sanctum of religious function, there can surely be no claim that
legislation regulating various activities outside the religious context
must accommodate doctrinal religious requirements. It is even
questionable whether denominational autonomy could be invoked by a
voluntary hospital.
Only “religious denominations” as such are stated to
have the right to “manage their own affairs”; this is arguably distinct
from medical or educational institutions operating under a
denominational ethos. Denominations have the right to “maintain” such
institutions, but nothing suggests they are to be immune from
legislative requirements safeguarding public interests.
Thus
the further a particular denominational body posits itself in the wider
public world, the more it becomes subject to increasing levels of
public regulation. Denominational schools, for example, are subject to
extensive state regulation, given the public function they fulfil.
Similarly, voluntary hospitals access considerable public funding and
provide a public service to the wider community irrespective of
religion. In the United States, the “ministerial exception” recognises a
constitutional exemption from equality requirements – but this can be
invoked only for personnel whose role is analogous to a religious
minister’s. Naturally, activities connected to religious practice
receive a higher degree of constitutional protection.
Thirdly, religious autonomy claims sometimes
have concrete costs for individual rights. To allow such opt-outs to
institutions that provide public services would undermine the rights of
citizens to access such services as needed. Historically, the public
sphere was hollowed out through the State divesting core public
functions to denominational bodies. At one level this has been damaging
for the welfare of vulnerable people – more abstractly, it gave the lie
to the State’s self-designation as a “republic”.