Charles E. Johnson
Acting Secretary
Department of Health and Human Services
Attn: Rescission Proposal Comments
Office of Public Health and Science
Dear Acting Secretary Johnson,
Human Rights Watch appreciates the opportunity to comment on the proposal to rescind the regulation entitled "Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law" (hereinafter "the regulation"). We join in the comments of the Center for Reproductive Rights, the National Asian Pacific American Women's Forum, and the National Latina Institute for Reproductive Health, which express deep concern regarding the impact that this regulation would have on access to reproductive health care, particularly for low-income and minority women. We now write separately to emphasize the protections that must be afforded to women under international law in the context of a health care provider's exercise of the right of conscientious objection.
International law recognizes the importance of conscientious objection to the exercise of an individual's fundamental right to freedom of thought, conscience, and religion.[i] However, that right must be balanced against a woman's exercise of her reproductive freedom, which is integral to her right to life,[ii] physical integrity,[iii] health,[iv] and non-discrimination.[v] The International Covenant on Civil and Political Rights (ICCPR), a treaty to which the US is a party, states that the freedom to manifest one's religion or beliefs may be subject to limitations prescribed by law to protect public health or the fundamental rights and freedoms of others.[vi] More specifically, the Committee on the Elimination of Discrimination against Women, the body charged with interpreting and monitoring the Convention on the Elimination of All Forms of Discrimination against Women, has repeatedly cautioned that conscientious objection cannot be allowed to deny women effective access to reproductive health care, including abortions.[vii]
In contrast, the regulation makes no attempt to balance the concerns of patients with those of providers, and has the potential to deny women access to services to which they are entitled under international law. The regulation's danger in this regard is evidenced most starkly by its failure to address limitations on the exercise of conscientious objection in emergency situations. Restrictions on abortion that result in increased risks to women's lives have repeatedly come under heavy criticism from international treaty monitoring bodies.[viii] The Human Rights Committee, monitoring body for the ICCPR, has expressed particular concern where abortion is unavailable in situations in which the life of the woman is in danger.[ix]
Further, the regulation erects a significant obstacle to women's access to abortion by including referral for services as one of the acts to which a provider may object. With regard to situations in which a provider has objected to performing a service, the Committee on the Elimination of Discrimination against Women has stated that "measures should be introduced to ensure that women are referred to alternative health providers."[x] Requiring that an objecting provider refer a patient to another provider who is willing to perform the service represents a careful accommodation of the provider's right to freedom of conscience with the patient's right to health. The regulation's approach is squarely at odds with the ethical obligations of health care providers to their patients,[xi] and the legal obligation of states to guarantee women the effective enjoyment of their rights.[xii]
We strongly recommend that the Department proceed with the rescission of this regulation, in order to uphold the rights of both patients and providers as required by international law.
Sincerely,
Meghan Rhoad
US Researcher
Women's Rights Division
Human Rights Watch
[i] The right to freedom of conscience is recognized in multiple international treaties. See e.g. International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States, June 8, 1992, art. 18; International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States October 21, 1994, art. (d)(vii) (recognizing the right of non-discrimination in the enjoyment of the right to freedom of conscience). The right of conscientious objection as a derivative of the right to freedom of conscience has been recognized by the Human Rights Committee, most often in reference to military service. UN Human Rights Committee, General Comment 22, Article 18: The Right to Freedom of Thought, Conscience and Religion, A/48/40 vol. I (1993) 208, paras. 11. See also UN Human Rights Committee, Concluding Observations on the Russian Federation, UN Doc. A/50/40 vol. I (1995) 65 at para. 382.
[ii] ICCPR, art. 6(1); and Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, art. 6(1) (recognizing the right to life).
[iii] American Convention on Human Rights ("Pact of San José, Costa Rica"), adopted November
22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978,
reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System,
OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), art. 5(1) (recognizing the right to physical integrity).
[iv] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 12(1) (recognizing the right to health).
[v]See e.g. ICCPR, arts. 2(1), 3; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, art. 2 (recognizing the right to non-discrimination).
[vi] ICCPR, art. 18.
[vii] See UN Committee on the Elimination of Discrimination against Women, General Recommendation 24, Women and Health (Twentieth session, 1999), U.N. Doc. A/54/38 at 5 (1999), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 271 (2003), para. 11; UN Committee on the Elimination of Discrimination against Women, Concluding Observations on Croatia, UN Doc. A/53/38 (1998), paras. 109, 117; Italy, UN Doc. A/52/38 Rev.1, Part II (1997), paras. 353, 360; South Africa, UN Doc. A/53/38/Rev.1 (1998), para. 113. The European Court of Human Rights has also upheld limitations on conscientious objection, finding against objecting pharmacists in one case on the ground that "as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere." Pichon and Sajous v. France, App. No. 49853/99, Decision of 02 October 2001, ECHR 2001-X, available at www.echr.coe.int, p. 4.
[viii] The UN Human Rights Committee has noted with concern the relationship of restrictions on abortion to clandestine abortions and threats to women's lives. See, e.g., UN Human Rights Committee, Concluding Observations on Honduras, UN Doc. CC PR/C/HND/CO/1 (2006), para. 8; Madagascar, UN Doc. CCPR/C/MDG/CO/3 (2007), para. 14; Chile, UN Doc. CCPR/C/CHL/CO/5 (2007), para. 8; Zambia, UN Doc. CCPR/C/ZMB/CO/3 (2007), para 18; Kenya, UN Doc. CCPR/CO/83/KEN (2005), para. 14; Mauritius, UN Doc. CCPR/CO/83/MUS (2005), para. 9; Bolivia, UN Doc. CCPR/C/79/Add.74 (1997), para. 22; Cameroon, UN Doc. CCPR/C/79/Add.116 (1999), para. 13; Chile, UN Doc. CCPR/C/79/Add.104 (1999), para. 15; Colombia, UN Doc. CCPR/CO/80/COL (2004), para. 13; Costa Rica, UN Doc. CCPR/C/79/Add.107 (1999), para. 11; Ecuador, UN Doc. CCPR/C/79/Add.92 (1998), para. 11; Guatemala, UN Doc. CCPR/CO/72/GTM (2001), para. 19; Mali, UN Doc. CCPR/CO/77/MLI (2003), para. 14; Morocco, UN Doc. CCPR/CO/82/MAR (2004), para. 29; Peru, UN Doc. CCPR/CO/70/PER (2000), para. 20; Poland, UN Doc. CCPR/C/79/Add.110 (1999), para. 11; Poland, UN Doc. CCPR/CO/82/POL (2004), para. 8; Senegal, UN Doc. CCPR/C/79/Add.82 (1997), para. 12; Sri Lanka, UN Doc. CCPR/CO/79/LKA (2003), para. 12; and Venezuela, UN Doc. CCPR/CO/71/VEN, (2001), para. 19.
[ix] See e.g. UN Human Rights Committee, Concluding Observations on Lesotho, UN Doc. A/54/40 vol. I (1999) 51, para. 254.
[x] General Recommendation 24, supra, para. 11.
[xi] International Federation of Gynecology and Obstetrics, Resolution on "Conscientious Objection", adopted November 7, 2006, available at http://www.figo.org/initiatives_conscientious.asp.
[xii] CEDAW, art. 3.
