The Notre Dame Law School Global Human Rights Clinic and the Program on Church, State & Society have filed an amicus brief in a very important case before the Honorable Constitutional Court of Ecuador. Specifically, it seeks to protect health services associated with religious denominations and their affiliated institutions, allowing them to refrain from performing and providing abortion services in accordance with their mission and vision. In this way, the presentation argues that the obligation to perform abortions in health institutions, especially under the Catholic Church's dependence, directly impacts the collective exercise of religious freedom, which is protected by the Ecuadorian Constitution and international human rights treaties.
The brief illustrates the international human rights law obligations applicable to the State of Ecuador, emphasizing the prohibition of discrimination on religious grounds and the violation of religious freedom of natural and legal persons.
The presentation also explains how the Constitution and the U.S. Supreme Court have balanced the separation of church and state, the duty of neutrality, and the effective guarantee of religious freedom for legal entities.
Finally, the amicus brief distinguishes between the collective exercise of religious freedom by denominations and their institutions and the institutional conscientious objection exercised by legal entities formed by people. The authors look at the specific case of the Catholic Church and its unique regulation via Modus Vivendi, the framework that not only provides legal recognition to the Catholic Church but also extends to all its affiliated organizations and institutions, including its healthcare services. The presentation argues that the obligation to perform abortions in health institutions under the Church's dependence directly impacts the collective exercise of religious freedom, which is protected by the Ecuadorian Constitution and international human rights treaties.
Diane Desierto, professor of law and global affairs, faculty director of the Global Human Rights Clinic, and faculty director of the Human Rights LL.M. Program, worked on the brief with Jorge Barrera-Rojas, visiting assistant professor of law, Rodes Jr. Fellow in Law & Religion of the Program on Church, State & Society. The presentation was also assisted and filed by Richard Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law and director of the Program on Church, State & Society; Fr. John Paul Kimes, associate professor of the practice at Notre Dame Law School; and O. Carter Snead, Charles E. Rice Professor of Law.
“It's important to emphasize the argument that compelling religious institutions to provide abortion services utterly negates the non-derogable right to freedom of religion and to manifest religion. That is understood in international human rights law as both an individual, as well as a collective right.” said Desierto. “Even arguments based on the right to health require that the health good or service must be "culturally appropriate," which is hardly the case when religious organizations are being compelled to provide a service that is contrary to their foundational belief about the sanctity of all human life at all stages.”
On the other hand, Barrera-Rojas analyzed, “It is possible to conclude that the obligation to perform abortions in the health institutions of its dependence directly affects the collective exercise of religious freedom contained in Article 66.8 of the Political Constitution of Ecuador and in the international human rights treaties in force, which are part of the constitutional block according to articles 417 and 426 of the Ecuadorian Constitution itself.”
Originally published by at ndlsglobalhumanrights.nd.edu on March 07, 2024.