The Center for Reproductive Rights has a comprehensive, and very worrisome, report on the extent of legal barriers to women’s reproductive healthcare. An obvious problem is laws in heavily Catholic countries that are so absurdly restrictive they prohibit surgical evacuation of a dead fetus, or abortion when a woman’s health is not merely threatened but she is in fact actually going blind, measurably and progressively, from side effects of the pregnancy. Beyond this, though, there is also the systematic efforts of the Catholic Church in Europe to evade local laws on reproductive healthcare rights by convincing governments to sign “concordats” stipulating restrictions on, or the right to impose restrictions on, healthcare rights and especially women’s reproductive autonomy, entirely outside the existing legal framework of the EU or the individual nation. Luckily, the EU has been taking a look at these developments, and there are some encouraging signs.

From the EU’s expert report on the Vatican “concordats”: such agreements are enforcable as treaties (on the premise that the Vatican is a country), and as such take precedence over existing national law to the contrary.

[Example of a "concordat" and its legal interpretation.]

On November 24th, 2000, a Basic Concordat was signed between the Holy See and the Slovak Republic (N° 326/2001 Coll.). Under this agreement, the Holy See and the Slovak Republic ‘consider themselves to the reciprocally independent and autonomous subjects of international law and will be inspired by these principles in their mutual relations’. The agreement contains a number of provisions defining the modalities through which the Catholic Church will exercise its missions in the Slovak Republic. Article 7 of the agreement states :

“The Slovak Republic recognizes the right of all to obey their conscience according to the doctrinal principles and morals of the Catholic Church. The extent and conditions of the application of this right will be defined by special Accord between the [Holy See and the Slovak Republic].”

. . . After it will have been ratified, the Draft Treaty will have the status of a treaty under international law. It will therefore bind both Parties to the Treaty, and it can be terminated only agreement of the Parties or upon termination of the Basic Concordat which it implements. . . .

[B]ecause the Draft Treaty would be recognized the status of an international human rights treaty, it would take precedence over the laws of the Slovak Republic in accordance with Article 7 paragraphs 4 and 5 of the Slovak Constitution. Although, in the ‘Precedence Clause’ report appended to the Draft Treaty (Article 7(5) of the Constitution of the Slovak Republic), it is stated the Draft Treaty ‘does not contain a direct regulation of rights and/or obligations of natural persons or legal persons’, under Article 144(1) of the Slovak Constitution, the courts in Slovakia will be bound by its content, and they might, for instance, release certain health care practitioners from their legal obligations on the basis of the right to conscientious objection clause which the Draft Treaty contains. Under Article 7(5) of the Constitution of the Slovak Republic, the Draft Treaty would not take precedence over the Constitution. However, it cannot be excluded that Article 24 of the Constitution in particular, which guarantees freedom of thought, conscience, religion and belief, will be interpreted according to the terms of the Draft Treaty, if and when this instrument will be in force.

The report goes on to note that the “conscientious objection” clauses are almost exclusively found in 4 specific areas of regulated behavior – 3 of them, not surprisingly, manifesting the Vatican’s obsession with (usually women’s) sexuality:

Where it is recognized either under concordats or under constitutional or legislative provisions, conscientious objection – which under these instruments may be invoked either by the members of the clergy alone, or by all persons who thereby seek to manifest their religious beliefs – concerns especially four activities : military service13 ; the celebration of weddings, in particular in which one of the persons has divorced from a previous marriage, same-sex marriage or unions such as registered partnerships between two persons of the same sex ; the provision of health services, in particular abortion, euthanasia, artificial fertilisation and medically assisted contraception.

The range of restrictions found under such agreements is broad; though specifics vary from nation to nation, it includes the right of refusal to provide abortion services in most countries, and also, variously, the right to refuse such services as assisted fertilization, “euthanasia”, contraception, or the performance of marriage ceremonies for gay couples (in countries where they are legal) or even for sex-reassigned individuals. In Germany, apparently, the “freedom of faith and conscience” may be invoked for any reason; “accordingly this means that no one can be obliged by State powers to act against his or her conscience.”

What is particularly striking about these laws, however – a point the report does not note – is that they are enacted between the individual nations and the Vatican with respect to the citizens of the target country – not Vatican personnel within that country! This is quite bizarre. Under what other circumstances does a country undertake to initiate treaties with a second country that involve only that second country’s citizens, acting under the second country’s laws on its own soil, and with no direct interests of the first country at stake? Many countries may want others to behave differently – only the Vatican has the chutzpah to use its religious leverage over their leaders to inveigle them into doing so, and then claim they are required to continue doing so as a matter of treaty.

The extent of the invasion of restrictive laws, and the systematic refusal of healthcare workers to provide services to women, citing such restrictive laws as justification, is shocking:

According to the information obtained from the Ministry of Health by the Member of the Network for Poland, in 2004, 193 abortions were performed in Poland in accordance with the above-mentioned Act on family planning, human embryo protection and conditions of permissibility of abortion. [FN: The figures were174 and 159 in 2003 and 2002 respectively.] Before the Human Rights Committee, the Polish government’s representative stated that 50 000 to 70 000 illegal abortions are performed in Poland each year. Estimates on the extent of the ‘abortion underground’ presented by the Polish Federation for Woman and Family Planning range higher, between 80 000 to 200 000 illegal abortions performed in Poland each year. The Polish government’s delegation also confirmed to the Human Rights Committee that difficulties have been encountered in Poland in association with the enforcement of the possibility to have an abortion in cases provided for under the legally binding act. According to the Polish authorities, these difficulties are connected in particular with moral factors (first and foremost the Poles’ religiousness); political factors (the strong influence of conservative parties linked with the anti-abortion policy propagated by the Catholic Church) and those factors that result from the code of medical ethics, especially the conscientious objection clause, which provides doctors with an opportunity to refuse the performance of an abortion on moral grounds’

The experts’ committe did have the courage to make an unambiguous recommendation in favor of women’s autonomy despite these restrictions:

In sum, whether the right to religious conscientious objection is recognized explicitly in a concordat, or whether it is derived from the guarantee of freedom of religion stipulated in international human rights instruments, in the national Constitution or in specific legislation, this right should be regulated in order to ensure that, in circumstances where abortion is legal, no woman shall be deprived from having effective access to the medical service of abortion. In the view of the Network, this implies that the State concerned must ensure, first, that an effective remedy should be open to challenge any refusal to provide abortion ; second, that an obligation will be imposed on the health care practitioner exercising his or her right to religious conscientious objection to refer the woman seeking abortion to another qualified health care practitioner who will agree to perform the abortion ; third, that another qualified health care practitioner will be indeed available, including in rural areas or in areas which are geographically remote from the centre.

[emphasis original]

Whether any organized move will emerge to block this – literally – continent-wide conspiracy to evade laws guaranteeing women’s liberty and reproductive freedom remains to be seen. But the extent of the problem is shocking. What is also shocking, and encouraging at the same time, is that the EU is to the fore in exposing and responding to these encroachments, in stark contrast to the United States where the government is much of the source of the parallel problem.

[see links above for many more details]