Protecting the freedom of conscience of secularists in the National Maternity Hospital
Our politicians are now wrestling with the issues around the National Maternity Hospital and the Sisters of Charity. Those issues are not just about access to reproductive healthcare, but also about the right to freedom of conscience. Those who seek a National Maternity Hospital free from religious influence do so on the basis of their constitutionally protected right to freedom of conscience.
Article 44.1 of the Irish Constitution protects the right to freedom of conscience. The Irish State has failed to recognise the right of those who, on the basis of conscience, seek healthcare without a religious purpose because that religious purpose undermines the dignity of the human person and is based on the tenets of a particular religion. The reason that politicians don’t see this as an issue of conscience is because of the influence of the Catholic Church in relation to the definition of freedom of conscience, religion and belief.
The European Court has said that secularism is a belief protected by Article 9 of the Convention, and that an aim to uphold secular and democratic values can be linked to the legitimate aim of the protection of the rights and freedoms of others within the meaning of Article 9 of the European Convention (Hamidovic v. Bosnia and Herzegovina 5.3.2018 European Court). Article 9 of the European Convention relates to freedom of thought, conscience and religion.
In 2010 the Irish State argued at the European Court in the A, B and C case that the restriction on abortion pursued the legitimate aim of the protection of morals, of which the protection in Ireland of the right to life of the unborn was one aspect. It is clear since the abortion referendum that a majority in Ireland disagreed with restricting abortion on the basis of a particular moral view.
The courts in Ireland have already recognised the right to freedom of conscience applies to those with philosophical convictions. Given the finding of the European court, it seems likely that the Irish courts would recognise that those who seek a secular healthcare system on the basis of their conscience are protected by Article 44.1 of the constitution.
In the High Court in 2011, Justice Hogan stated that:
“27. Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees freedom of conscience and the free practice of religion. Taken together, these constitutional provisions ensure that, subject to limited exceptions, all citizens have complete freedom of philosophical and religious thought, along with the freedom to speak their mind and to say what they please in all such matters….”
“35. There is thus no doubt at all but that parents have the constitutional right to raise their children by reference to their own religious and philosophical views.” (AB v Children’s Hospital Temple Street & CD & EF – January 2011)
Denying women their reproductive rights is discrimination, and it undermines the rights of women. Many people object on the ground of conscience to the State involving a religious body in the National Maternity Hospital project, and especially when that body actively campaigns internationally to deny reproductive rights to women.
The supporters of secularism can be those with no religious affiliation, atheists, or humanists, but also those with a religious belief, as there are many religious secularists.
Under the Constitution everyone has a right to equality before the law and the State cannot discriminate in access to termination of pregnancy on moral grounds. The State also has a duty to defend and vindicate the personal rights of the citizen, which includes the right to freedom of conscience. Handing over public healthcare to private religious bodies that deny access to reproductive rights because of Canon law is a clear disregard for the rights of secularists and the outcome of the abortion referendum.