Reckoning with Growing Pluralism. Potentials and Limits of Conscientious Objection: Conscience Clauses in Abortion Laws in Europe

Abstract

In recent years, conscientious objection has been confronted with growing hostility among the public as well as in scholarly debate. With regard to termination of pregnancy, the right to conscientious objection has frequently been depicted as an unjust and antidemocratic privilege for religious minorities or as part of an illiberal attack to women’s rights. This paper argues that, if properly regulated, conscientious objection is not only compatible with the liberal principles western democracies rest on but is also an essential tool of democratic societies committed to pluralism. It discusses the case-law on conscience clauses in abortion laws of supreme and constitutional courts of several European legal orders to show that conscientious objection can significantly contribute to protect pluralism in democratic societies, provided that two criteria are met. First, the right to conscientious objection should be granted only exceptionally, when a moral conflict is as deep as to impinge on the human being’s dignity. Second, it should not be granted without providing for adequate mechanisms to ensure the law’s effectiveness notwithstanding conscientious objection.