Interview With Law Professor Rafael Navarro-Valls
By Inma Álvarez
MADRID, Spain, 5 APRIL 2011 (ZENIT)
The right to conscientious objection — in areas ranging from health care to education — is one of the most important legal battles being fought in the West, according to a law professor and author on the subject.
Spain is a case in point — with a struggle to secure state recognition of a person's right to refuse something morally unjust in issues such as school curricula, the new abortion law, or the sale of the abortifacient pill, among others.
On this question, Spanish jurist Rafael Navarro Valls, a law professor and regular contributor to ZENIT’s Spanish-language edition, has recently published a book, together with Javier Martínez Torrón, titled "Conflictos entre conciencia y ley. Las objeciones de conciencia" (Conflicts between Conscience and Law: Conscientious Objections).
ZENIT spoke with the author about the nature and limits of conscientious objection. Part 2 of this interview will be published Wednesday.
ZENIT: Isn't it a contradiction that, precisely in the century of human rights, it has been necessary to develop the right of conscientious objection?
Navarro-Valls: The juridical elaboration of a human right is a long and, at times, painful process. This was the case with freedom of speech and religious liberty, with non-discrimination on racial questions and, now, with conscientious objection. There are two positions: to understand conscientious objection as a sort of "religious delirium," a simple exception to the legal norm, which it is good to restrict or, on the contrary, to understand it as an evident derivation of the fundamental right of liberty of conscience, a real human right.
In this second perspective — the correct one — the right of conscientious objection must lose its undertone of "more or less agreed illegality."
Only an all-embracing conception of the state can bring conscientious objection to be regarded with suspicion, precisely because it occupies a central, not marginal, place in legislation, for the same reason and in the same way that the human person is central.
Public powers are obliged to find a reasonable adaptation to citizens' duties of conscience to the degree that it does not harm a higher public interest. The United States Supreme Court expressed it very well: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
ZENIT: There is a right of conscientious objection to military service, and for doctors, etc. Can one object to everything or is there a limit?
Navarro-Valls: As the European Court of Human Rights pointed out (1982), for conscientious objection to be considered worthy of being taken into consideration, the conviction or belief that motivates it must proceed "from a sufficiently structured, coherent and sincere system of thought." For its part, a decision of the House of Lords in the Williamson case (2005) requires that for a belief (religious or not) to be taken into account, it must be "consistent with elemental standards of human dignity," refer to "fundamental problems" and not to "trivial questions" and have a "certain degree of seriousness and importance." These characteristics are found more easily in beliefs with a religious background, given that they imply a coherent system of beliefs. Perhaps because of this, conscientious objection has moved historically in parallel with religious liberty, constituting one of its most outstanding dimensions. Of course, liberty of conscience is not exhausted in the framework of religious convictions. There are others of a philosophical, deontological, etc. character, which also support conscientious objection.
Apart from this criterion, in the matter of limits to conscientious objection, we can mention some additional criteria. Perhaps the most striking is a conduct's potential level of social danger. In principle, the pure omissible attitude — not to perform an abortion, not to be part of a jury, not to attend certain classes, etc. — in face of a norm that obliges one to do something reaches less of a level of social risk than other objections that lead to an active attitude in face of a legal norm that prohibits a certain behavior. An example is the Reynolds case: the American [Utah Territorial Supreme] Court rejected the pretension of the Mormon Church, based on reasons of conscience, that the criminal laws on polygamy not be applied to the faithful whose religion allowed it. The practice of polygamy, the court understood, "contradicts Western public order, which calls for marriage to be monogamous."
In fine, no matter how high the sensibility regarding a certain law toward respect of liberty of conscience, it is clear that in some assumptions the juridical goods in conflict cannot be altogether reconciled, that is, that the juridical norm will not be able to be adapted in its totality to the moral exigencies of conscience of all citizens. In such situations, however, the ideal is to avoid simplistic answers of a negative character. The political power must make a flexible effort to seek the less harmful for the objector's conscience.
ZENIT: Does the recent case established in Spain of objection to the subject "Education for Citizenship" enter into the definition of conscientious objection?
Navarro-Valls: Of course. The right to choose the type of education we wish to give — or not give — our children is part of our right to choose a conception of good and to put it into practice, without interference from public powers. The problem arises when there is disagreement between the state and the parents on what is the best way to prepare pupils to participate in political life or to ensure their moral progress.
In these cases, the state can adopt two positions. The first, to decide on its own what is the best way to ensure the development of the moral, civic and political competencies of the new generations. The second, to decide that it does not correspond to it to give a definitive answer to the question. This is the correct position, from the point of view of human rights and a mature democracy. That is why the legal imposition of a subject of anthropological and moral formation of a general character for all pupils can be a clear infraction of the constitutional rights that correspond to the parents, and which justify that the [act] of the fundamental right of liberty of conscience be protected.
This line is followed by the jurisprudence of the European Court of Human Rights (Folgero and Zengin cases, 2007) and that of the United States of America Supreme Court, which, in the Yoder case (1972), already decided years ago that the liberty of parents to educate their children morally is above the coercive power of the state in the matter of compulsory schooling. Hence the severe criticism that the Spanish Supreme Court received on decreeing in February of 2009 the rejection of conscientious objection posed by numerous parents to the subject of Education for Citizenship. The weakness of the juridical approach of the Supreme Court is evident when one sees that the decisions are accompanied by no less than 10 individual opposing votes from the magistrates of the chamber themselves. The decisions of the Supreme Court have been appealed to the Constitutional Court and the Court of Human Rights. There are well-founded hopes that, in the end, the objecting parents will be protected in their rights.
ZENIT: Could there be fiscal conscientious objection, for example, given the use of public funds for morally compromised uses, such as abortion?
Navarro-Valls: It must be noted, first of all, that fiscal conscientious objection is not usually directed against the act exacted by the law — the payment of taxes — but rather against the allocation made of part of them. That is why, those called fiscal objectors suggest as an alternative allocating the quota that initially they refused to pay to other ends that are compatible with their conscience. Hence, they are not tax evaders: their objective is not to defraud the treasury, but to avoid contributing to expenses that, according to their conscience, they consider immoral — military expenses, the financing of abortions, etc. In so far as I know, draft laws have been presented in favor of fiscal objection in the United States, Canada, Holland, Belgium, Germany, the United Kingdom, Italy and Spain (the latter in June of 2005, by the ERC parliamentary group). For the time being, they have not obtained the majority approval of the chambers. However, some Canadian and North American jurisprudence has accepted similar forms of fiscal objection. Specifically, they have protected objectors who, for reasons of conscience, refused to pay quotas owed to labor unions, allocating the sum to welfare institutions or charities.
In my opinion, the inflexible application of the principle of not affecting taxes — which is the great obstacle to allowing fiscal objection — is being increasingly contested by the tributary juridical doctrine, today more inclined to tax conceptions based partially on the principle of profit instead of ability to pay: the citizen pays in virtue of the benefit he receives from the public performance and not just because of his economic capacity. This type of consideration will make it easier, in a not too distant future, for conscience considerations to be taken into account, including the one opposed to paying taxes allocated to finance abortions.
Interview With Law Professor Rafael Navarro-Valls
By Inma Álvarez
MADRID, Spain, 6 APRIL 2011 (ZENIT)
Conscientious objection in the field of health care is an issue attracting media and legal attention across the Western world, particularly in regard to the right to object to the "right" to abortion.
Regarding this issue, Spanish jurist Rafael Navarro-Valls, a law professor and regular contributor to ZENIT's Spanish-language edition, has recently published a book, together with Javier Martínez Torrón, titled "Conflictos entre conciencia y ley. Las objeciones de conciencia" (Conflicts between Conscience and Law: Conscientious Objections).
ZENIT spoke with the author about the nature and limits of conscientious objection in the area of health care. Part 1 of this interview was published Tuesday.
ZENIT: Does conscientious objection presuppose a correctly formed conscience? That is, does it presuppose that positive law can be unjust, which is equivalent to recognizing a legal foundation beyond the positive law, a "natural law" that compels the conscience?
Navarro-Valls: In principle, conscientious objection is a fundamental right that even protects the so-called erroneous conscience. The state is not competent to evaluate the motivations that drive the consciences of its citizens.
However, it is obvious that in many cases, the objector acts moved by a natural law that is above positive law. This isn't an anomaly. A few years ago on the 50th anniversary of the beginning of that judicial drama that was the Nuremberg trials, it was noted that by rejecting the thesis of "due obedience" to the national-socialist law and to the chain of command when it orders atrocities, an ethical function was favored, which in the classic theory of justice corresponds to the personal conscience. Nuremberg demonstrated that Western juridical culture is founded on radical juridical values, above the decisions of eventual majorities or plebiscitary impositions.
ZENIT: What do you think of European directives in the concrete case of the objection of health personnel to abortion? And of the Spanish abortion law? Why is there so much reticence to recognize this right?
Navarro-Valls: The detectable reticence to recognize this right in its fullness has suffered a severe juridical setback by the recent resolution 1763 (2010) of the Parliamentary Assembly of the Council of Europe. Established there is a clear prohibition to coerce or discriminate against persons or institutions that refuse — for any reason — to take part or collaborate in a voluntary abortion, euthanasia, or any act that causes the death of a human fetus or embryo. At the same time, it invites the member states to develop norms that will fully protect conscientious objection to abortion, guaranteeing health personnel the right to abstain from any type of abortifacient or euthanasic practices.
In regard to Spain, the regulation of conscientious objection to abortion made in the Organic Law 2/2010, to the degree that it tries to restrict it, clashes frontally with the doctrine of the Constitutional Court which, already in the 14th juridical foundation of the STC 53/1985, protects it fully, on declaring it an integral part of the fundamental right of ideological and religious liberty recognized by article 16.1 of the Spanish Constitution. Moreover, the clauses of the 2010 law that call for adding abortifacient techniques to the curricula of certain health degrees justify that several medicine faculties in Spanish universities have posed institutional conscientious objection to those teachings. Their argumentation: "The tragedy of an unwanted pregnancy cannot be solved with the higher tragedy of abortion. Our commitment is to form professionals to cure, investigate and help." It reminds me of the position adopted by two anesthetists in an American prison called to give a lethal injection to a man sentenced to death. Their refusal was based on this argument: "We are doctors, not executioners."
ZENIT: In some cases objection to prenatal diagnosis has been proposed, as this can imply a "death sentence" for the fetus. If this were taken to the extreme, not even ultrasounds could be made, as any diagnosis might lead the mother to abort. In what cases would it be justified to object? Is there a difference between invasive and non-invasive techniques?
Navarro-Valls: To understand this type of objection, which in fact some gynecologists have already asked themselves, it is appropriate to recall that this medical technique is usually used to detect genetic malformations. For example, in its protocols the Spanish Society of Gynecology and Obstetrics recommends that amniocentesis be done before the 22nd week, to give time to abort legally. Hence the reason that the usual prenatal examination is related to values related to human life: it affects disabled persons, as individuals and as a group, as well as respect for the rights of autonomy of pregnant women.
In this context, the objections posed by gynecologists are based on the following reasoning: 1. There is nothing objectionable in carrying out obstetric controls geared to detect situations that can be prevented or treated, including finding fetal sicknesses to be treated in utero or after birth; 2. However, sometimes the prenatal diagnosis implies a disproportionate potential risk for the child in gestation or lacks therapeutic usefulness. In these assumption is becomes a eugenic instrument. The children can be aborted — and in fact at times they are — with trivial diagnoses: cleft palate, club foot, curable pathologies, such as cardio-pathologies, etc.; 3. It is in these situations that objections have been posed. In Spain, the adoption of cautionary measures have been accepted judicially so that the objecting gynecologist can refuse to make those diagnoses, "as the harm they could cause would be difficult to repair" (STSJ of Andalusia, Sept. 30, 2008).
ZENIT: Finally, we pose the case of a doctor who is obliged to object to a medical practice that he considers contrary to his conscience. What steps must he follow to make this decision? Must objection be the last resort?
Navarro-Valls: Before objecting in conscience, the doctor — including primary care doctors, who in some countries are the first ones obliged by law to give pregnant women information on abortifacient practices — must confirm that the abortion proposed is legal, namely, that it is included in the norms covered by the law. If it were not, then of course what opposes it is legal objection, that is the refusal to carry out an abortifacient practice that can be criminal.
Having verified that the abortion is legal, he can then use conscientious objection. The method will depend on each legislation. In Spain, the new legislation of 2010 established that the objection must be made "in advance and in writing," without specifying anything else. The normal way would be to do so at the hospital or health center in which one works. There are medical schools where there is a register of objectors: It is prudent that it also be recorded in that register. Suffice it to object once and no type of authorization is necessary.
In case of a refusal from a higher authority, the doctor can initiate an administrative process and then a judicial one, until a judicial resolution is made, until all recourses are exhausted. In any case, during the duration of that judicial process the doctor is not obliged to carry out any abortion whatsoever.
In Spain there is the "Guía de Objeción de Conciencia Sanitaria al Aborto" (Guide for Conscientious Objection to Therapeutic Abortion) published by ANDOC, July 2010, where all these steps that I summarize here are very well explained, as well as the classes of people (administrative, medical, paramedical personnel, etc.) who enjoy the right of objection. I refer to this excellent guide.
[Translation by ZENIT]