The problem whether religious reasons for legislation are legitimate, especially where these are concerned with the private lives of men and women, is theoretically difficult, constitutionally fundamental, and politically loaded. Nowhere is this more so than in the case of regulation of abortion.
Because it is not yet clear whether there is a right of abortion in international law, it is important to examine the process by which domestic and international law and policy on this issue is made. Currently, a right over reproduction is not explicitly included in any of the main human rights instruments. CEDAW guarantees equal access to healthcare, including 'family planning', a term deliberately left vague. GC 24 interprets that 'it is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.'
Access to contraception and abortion might be considered as included in Article 2 in conjunction with Article 1 of CEDAW (prohibition of discrimination), although this would entail a complex argument that lack of access to abortion constitutes 'distinction, exclusion or restriction made on the basis of sex', because lack of means of ensuring reproductive choice have vastly unequal consequences for men and women, thus perpetuating existing gender inequalities.
Only the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa includes a specific obligation of state parties to protect reproductive rights of women, including authorizing abortion in cases of rape and when continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus or is the result of incest. This is not a full right to abortion based on a perception of women's bodily autonomy, but rather a truncated right, based on what are perceived by society as fruit of crimes committed and danger to health.
The International Conference on Population and Development ('The Cairo Conference') did not recognize a right to abortion. This was directly due to religious involvement in the discussions. The Vatican was one of the most active participants in the Cairo Conference, objecting to all references to human rights of abortion and contraception. The Beijing Declaration and Platform for Action suggests states not take punitive steps against women who have undergone abortions, but nowhere suggest that it is a right of women. The follow-up report also does not suggest such a right.
While the question of abortion is usually argued as one of substantive rights, the process of the determination of these rights should also be considered. If a state or international policy is deemed in breach of religious freedom because of institutional religious involvement in its formulation, this adds a different reason to argue that prohibitions on abortions are in breach of human rights.
In the context of the debate on the constitutionality of prohibition of abortions in US law, Tribe has argued that whenever the views of organized religion play a dominant role in formulating an entire government policy, as is the case with abortion, it is an improper involvement of religion in the political process, violating the establishment clause of the First Amendment. Later, however, in a move that is testament to the difficulty of this question, he shifted his stand, acknowledging that, in fact, religion could not be disentangled from the public debate on the issue.
The influence of religion on the legislative process can be seen in the constitutional reform concerning abortion in Ireland. In referendum on the issue, religious arguments played a pivotal role in supporting one side of the debate. The CEDAW Committee criticized this influence of the Church on law and policy. The Committee noted in 1999, that although Ireland is a secular state, the influence of the Church is strongly felt not only in attitudes and stereotypes but also in official state policy. In particular, it noted, women's right to health, including reproductive health, is compromised by this influence. While criticizing church involvement in legislation in a specific case, it seems that the Committee viewed the involvement of the Church in formulating state policy in a secular state as an institutional problem of human rights.
However, religious involvement in referendum, as in Ireland, raises separate considerations. The use of religious arguments in a referendum is perhaps the most justifiable of all uses of religious arguments in policy making. As shown in Chapter 2, the strongest argument against use of religious reasons exists when these are used by public servants; these arguments are weaker against religious reasons for voting by individual citizens, such as voters in referendum. It is practically impossible to disallow the reliance of individual voters on religious reasons for their voting. Not only that, but the right of free speech includes the right of the voters to hear and consider any religious message before voting, as well as the right of the religious speakers to impart such a message. Thus, while institutional religious involvement in deciding the rights of women is problematic, it may not be easy to justify its prohibition.
There is, however, a strong, although not conclusive, case for claiming that women do have a right of access to abortion under international law. If so, regardless of the legitimacy of using religious reasons for the decision to vote for or against abortions, a law that prohibits abortions could be attacked on substantive human rights grounds.
The argument that the right to freedom of religion and belief includes a right that the state will not legislate secular laws based on religious norms was raised, but not examined, in a case of the European Court of Human Rights. In Johnston, the European Court concluded that Article 12 of the European Convention (the right to marry) does not include a right to divorce and neither does Protocol 7 to the Convention and, further, that neither is such a right included in Article 8 (protection of family life). Johnston claimed as well that lack of a divorce provision breached his rights under Article 9, as the inability to live with his new partner as married man and wife was against his conscience. The Court summarily dismissed this claim, saying Johnston's freedom to have and manifest his convictions was not in issue. The law in Ireland has changed since the ruling.
Malta is now the only state under the jurisdiction of the European Court that has no divorce provision, and to which this case is directly applicable. However, the Court's analysis of religious freedom is still relevant. It viewed freedom of conscience as limited to the right to manifest convictions. The European Court interpreted narrowly the concept of religious freedom. It did not raise the question whether the state, by mandating a system of marriage and divorce that conforms to one religious creed, impinges on the freedom of religion and conscience of those who do not subscribe to that belief.
Lack of divorce provisions impinges on the liberties of both men and women, but its effect on men is different from its effect on women. In a social structure in which most marital unions are dominated by men, through unequal financial power and traditional gender roles, lack of divorce provisions constitutes a breach of equality for women, as well as a breach of freedom of conscience for both men and women.
When a state shapes the lives of men and women, constricting them through laws based on religious doctrine, a question of religious freedom is raised. This is true, of course, not just regarding lack of divorce, but regarding any other legal arrangement that is based on religious doctrine.
As discussed in Chapter 2, a contrary argument can be made, that, in keeping with liberal conceptions, channeling religious motives into the political system through democratic participation is not only legitimate, but also has a positive public value. However, women have historically been, and mostly still are, excluded from the formulation of religious doctrine. So, the legitimation of religious motives for legislation discriminates against women in the legislative process, apart from any discrimination that may be manifested in the resulting legislation.
