Religious freedom arguments in the abortion debate

The political battle over the Protection of Life during Pregnancy Act has given way to further dispute about the precise extent of the obligation it imposes on hospitals. An earlier draft of the Bill prohibited hospitals from refusing to perform legal abortions, although allowing conscientious objection for individual staff. While the individual right of objection remains in place, the Act is in fact silent on the question of hospital policies and institutional opt-out (the Minister for Health insisted such a provision was unnecessary). Instead, the legislation provides a schedule of “appropriate institutions” in which legal abortions may be carried out. Crucially, this includes two voluntary Catholic hospitals in Dublin, St Vincent’s and the Mater hospital.

It is open to debate whether the Act (or the law generally) positively obliges the listed hospitals to provide lawful abortions where needed – or simply permits them to do so (the balance of opinion probably lies with the former, despite the Act using permissive rather than prescriptive language).In any event, Fr Kevin Doran, a member of the Board of Governors of the Mater hospital, has publicly asserted that its ethos prevents it from providing the procedures envisaged in the Act.

Irrespective of the Act’s ambiguities, some commentators have suggested that the Constitution protects voluntary hospitals from being forced to provide medical procedures which undermine their religious ethos. Mark Coen argues: “constitutional case law … emphasises that religious institutions, even if publicly funded, may not be forced to act in a manner which conflicts with their ethos”. Gerry Whyte , similarly, argues that the Government’s view – that publicly funded hospitals may be required to perform the relevant procedures – ” fails to take proper account of the guarantee of religious autonomy in article 44.2.5.” And while the Mater’s board member did not explicitly invoke constitutional principles, it is likely that such “religious freedom” claims will frame resistance to the implementation of the law – in a manner similar to the discourse employed by opponents to the Civil Partnership bill.

If this constitutional assessment were correct, it would mean either that certain provisions of the Act were unconstitutional (as Coen suggests) – or, more likely in my view, that these provisions would be upheld but interpreted restrictively so as to allow voluntary hospitals to refuse abortions (except, surely, in emergency situations).

However, these concerns are based on an implausibly broad interpretation of religious freedom and denominational autonomy. Article 44 of the Constitution protects freedom of conscience and religion for individuals, but also states that religious denominations will have the right to manage their own affairs. Sometimes this principle of denominational autonomy is interpreted as meaning that legislation cannot interfere with the ethos of institutions which are denominationally owned or which operate under a denominational ethos. For example, it has long been assumed that the Constitution requires denominational schools to be exempted from certain aspects of equality legislation. In a remarkably terse judgment, the Supreme Court upheld the exemption of denominational schools from a statutory prohibition on religious discrimination in the employment context, largely on the basis of a simplistic dichotomy between religious freedom and equality (the former trumping the latter) (Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 231]. The Court apparently accepted that constitutional religious freedom is engaged simply where an institution operating under a denominational ethos is subject to requirements which are inconsistent with that ethos, irrespective of whether freedom of religious practice or denominational organisation is implicated. Moreover, it held that this “religious freedom” interest trumps the principle of non-discrimination on religious grounds. This effectively permitted institutions which are publicly funded, and indeed which effectively provide public services, to directly discriminate on religious grounds despite the ostensibly strong prohibition on religious discrimination contained in Article 44 of the Constitution.  Indeed, that absurd piece of constitutional mythology ultimately underlies the grotesque spectacle of publicly-funded schools demanding baptismal certificates from prospective pupils by virtue of the broad exemption for denominational schools contained in s 7 of the Equality Status Act 2000 (see Daly and Hickey, 2011 Legal Studies.)

There are comparatively few precedents in Irish law to guide us on the question of denominational autonomy. Coen’s and Whyte’s arguments rest primarily on the authority of the Supreme Court’s 1997 judgment. However, there are nonetheless a number of fundamental weaknesses in the arguments that have been raised.

First, it has never been recognised that religious freedom entitles individuals or institutions to exemptions from legislative requirements which create obligations inconsistent with religious beliefs, where such requirements do not pertain to religious practice as such. The United States Supreme Court has affirmed that religious freedom is not engaged simply where legislation creates obligations inconsistent with religious beliefs, insofar as such legislation is “neutral”, has no direct bearing on religious practices or beliefs and is generally applicable to a category of acts (eg drug-taking) irrespective of their religious motivation (see Employment Division v Smith).  Of course, the Irish Supreme court has not endorsed this position, but its jurisprudence on religious freedom is simply too rudimentary to draw firm conclusions from this or to identify a well-defined alternative doctrine. On the other hand, the European Court of Human Rights has repeatedly affirmed that religious freedom will not necessarily entitle individuals to exercise their beliefs in professional and public-service contexts (see eg Pichon and Sajous v France or more recently Ladele and McFarlane v the United Kingdom).

Secondly, it is likely that the constitutional principle of denominational autonomy provides much more extensive protection for the internal functioning of religious denominations as distinct from secular activities which denominational-ethos institutions might undertake. While legislation cannot intervene in the inner sanctum of religious function or denominational organisation, there can surely be no claim that legislation regulating various activities outside the religious context (health, education, etc) must accommodate particular religious doctrinal requirements in order to be considered constitutional. It is doubtful whether Article 44 could be invoked by the Mater hospital as such as opposed to individual staff (who are already protected in the legislation). While Whyte considers that denominational autonomy might apply to voluntary hospitals operating under a religious ethos, Article 44.2.5 states that “every religious denomination shall have the right to manage its own affairs“.  This suggests a right against state interference in internal denominational matters rather than a claim against legislative restrictions in the service-provision context.

Therefore, while denominational autonomy protects the collective and organisational aspect of religious practice, the principle has a much weaker application to activities that denominational bodies might undertake in the wider secular world. For obvious reasons, denominational schools, for example, are subject to extensive state regulation, not least because of the state funding they receive and the largely public nature of the function they fulfil. Clearly, there could be no constitutoinal claim against the national curriculum, for example, simply on the basis that its contents (eg evolution teachings) contradicted the ethos  of certain publicly-funded denominational schools. The further a particular denominational body posits itself in the wider public world – in particular by providing services to the community at large and accepting public funding for this purpose – the more it becomes amenable to increasing levels of public regulation. This is partly why I believe that, contra the Supreme Court’s 1997 decision, the over-broad exemptions for denominational schools contained in equality legislation should be regarded as unconstitutional  – not least because the practice of religious discrimination in enrolment  negatively impacts the religious freedom of those who are discriminated against, much more tangibly so than it would be for those denominations who might otherwise be required to implement non-discriminatory enrolment practices as a condition of public funding (see Chapter 3, Religion, Law and the Irish State (Clarus, 2012)).

Similarly, voluntary hospitals access great levels of public funding and provide a public service to the wider community irrespective of religion. Therefore, denominational autonomy applies in a much weaker form – if it applies at all – in such contexts. In the United States, a doctrine has emerged which recognises a “ministerial exemption” from equality laws and other legislative requirements – but this can only be invoked for personnel whose role is analogous to that of a religious minister (See Hosanna-tabor Evangelical Lutheran Church v. EEOC). At least denominational schools undertake activities related to religious instruction and practice and so might plausibly claim the protection of a “ministerial” exemption. However, the same cannot be said of voluntary hospitals: there is no question of a claim to non-interference in religious practice as distinct from the claim to perform non-religious activities in conformity with religious beliefs.

Thirdly, to allow such claims would vest an arbitrary power and discretion in religious-ethos institutions which provide public services. Exempting publicly-funded institutions from the duty to provide public services to the community generally would undermine the rights of citizens to access such services as needed. Historically, the public sphere has been hollowed out by the State divesting essential public functions to denominational bodies. At one level this legacy has been destructive in concrete ways for the welfare of vulnerable people – for example, the families told (by “national” schools) that “we take our own first”, or by the residents of industrial schools or other institutions which fulfilled public functions without proper public oversight. The autonomy claims of religious denominations can undermine individual rights, and this has an obvious application in the present debate. Equally, at a more abstract level it is this surrender of the public sphere to powerful private bodies which gives the lie to the State’s self-designation as a “republic”. In any event “religious freedom” often now seems merely an ideological catchphrase to defend the traditional status and power of certain religious denominations.  These are not claims to engage in religious practice without interference, but rather a defence of the traditional prerogatives of institutional Catholicism to shape, structure and define the values of the public sphere. Historically such claims were articulated in more bellicose language, not the apparently innocent and innocuous terminologies of religious freedom. But this defensive invocation of religious freedom must be seen as part of a broader trajectory- since roughly the 1990s – as the traditional deference of officialdom has gradually waned. Just as today a coadjutor bishop resorted to free-speech hyperbole – based on what he saw as the negative reception of Catholic arguments in the abortion debate – the recent debates on denominational schools have seen liberal terminologies of “diversity” and “choice” deployed to defend the educational status quo, and the extensive power it vests in denominational “patrons”. We must see that too often, religious freedom claims operate as a function of power relations in society – as a pretext for religious institutions with money, property and power to secure legislative and administrative arrangements in accordance with their interests. The constitutional arguments raised concerning voluntary hospitals must be seen in this historical lens.

Religious freedom arguments in the abortion debate

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