On 7th of October 2015 the Constitutional Tribunal of the Republic of Poland, sitting as Grand Chamber, issued a verdict in a case K 12/14, regarding the freedom of conscience of a medical doctors. The constitutional review concerned statutory conditions for rising conscientious objection. It has particular importance to those physicians who refuse performance of abortion, prescription of contraceptives or IVF procedure pharmaceuticals. The Tribunal stated that a right to conscientious objection must be respected even if not expressly admitted in statutory form. This has a great importance for pharmacist, midwives and other medical practitioners.
The constitutional review was initiated by the National Council of Medical Doctors and concerned some of the statutory premises of legitimate rising of the conscientious objection.
The National Council of Medical Doctors requested i.a. constitutional review of:
- Art. 39 in connection with Art. 30 of the statute on the performance of medical profession, imposing ambiguous and wide exceptions on general conscientious objection clause, i.a. establishing an obligation of a medical practitioner to provide a „health service” (including non-medical services like abortion, IVF, contraceptives prescription) not only when delay could endanger patient’s life or result in serious bodily injury or severe health disorder, but also in „other urgent situations”.
- Art. 39 of the statute on the performance of medical profession, imposing on a doctor refusing to carry out health services an obligation to refer a patient to another physician or medical institution, where the health service will be provided.
The National Council of Medical Doctors asserted that those provisions coerce a medical practitioner to carry out health services contrary to their conscience, even if an immediate action is not required in order to secure patient’s life or prevent serious bodily injury or severe health disorder.
The applicant claimed breach of Art. 53 section 1 and Art. 31 section 3 of the Constitution. Art. 53 section 1 declares protection of the freedom of conscience, while Art. 31 section 3 sets principle of proportionality determining legitimate statutory restrictions of constitutional freedoms and rights (principles of necessity, utility, proportionality sensu stricto, as well as general prohibition of introducing limitations violating the essence of a constitutional freedom or right).
The Constitutional Tribunal stated that under Art. 53 section 1 of the Polish Constitution and relevant international laws, the conscientious objection and the freedom of conscience in general is intrinsic to human dignity, fundamental and prior to other constitutional freedoms and rights. In this context, no patient’s rights, other than those connected with protection go his life or protection from serious bodily injury or severe health disorder, could be granted primacy over right of conscientious objection.
Art. 39 of the challenged Act does not constitute a privilege of the doctor, because the freedom of conscience is a primary value, confirmed by constitutional and international law. The freedom of conscience - including the conscientious objection - must be respected regardless of the existence of its statutory confirmation.
The Tribunal stated that the phrase „other urgent situations” is too ambiguous and does indicate explicitly neither constitutional values nor rights, protection of which might be considered as a legitimate ground for the restrictions of the freedom of conscience. With regard to the hierarchy of constitutional values, and principles governing statutory limitations of constitutional freedoms and rights (principles of necessity, utility, proportionality, as well as general prohibition of introducing limitations violating the essence of freedom or right), the Tribunal expressed opinion that only patient’s rights that could be granted priority over the freedom of conscience are those that serve directly protection of life or protection from serious bodily injury or severe health disorder.
Tribunal dismissed also statutory provision imposing on a doctor objecting to perform a medical service on conscientious basis, obligation to refer a patient to another physician or medical institution believed not to object to perform the service in question. Tribunal held such a requirement to be unconstitutional. The constitutional guarantee of this freedom protects an individual not only from obligations to act against one’s conscience, but also from such an action, which would lead indirectly to ethically unacceptable result, especially from an obligation to cooperate in order to achieve objected purposes.
The Tribunal stated, that the dismissed statutory provision, requiring a doctor to refer a patient to another physician or medical institution, where the health service will be provided, is an inadequate measure to achieve the aim determined by the legislator - namely, to provide a patient with a medical service as soon as possible. The contested regulation is unnecessary in a State based on the rule of law, neither to provide patient with public information nor to preserve public order.
Four judges issued dissenting opinions, one of which argues for broader protection of freedom of conscience.
The full written reasoning of the judgment will be issued in following weeks. This information is based on the conduct of the public hearing in the Constitutional Tribunal and an official press release of the Constitutional Tribunal’s Office.
Both for the media and for the public opinion in Poland, the freedom of conscience and conscientious objection are identified with widely known Professor Bogdan Chazan case. Professor Bogdan Chazan, a doctor and director of Holy Family Hospital in Warsaw, whose employment contract was terminated shortly after he refused to perform abortion of a child affected with serious bodily defects and did not refer a mother to another physician or medical institution, where the abortion could be provided. After his refusal to perform abortion a criminal proceeding started as well as professional disciplinary proceeding in the Physician’s Council. Both proceedings were recently decided in favor of prof. Chazan with help of Ordo Iuris lawyers. The employment case for reinstatement as director of the hospital was filed by Ordo Iuris attorney Jerzy Kwaśniewski and is still to be decided. Verdict of the Constitutional Tribunal will probably have a significant impact on the final decision of the employment court.