Forcing Catholic hospital to place IUDs violates freedom of conscience

The Public Ministry of São Paulo (MP-SP) opened an investigation, last Tuesday (30), to investigate the São Camilo Hospital, founded by religious people, after a patient’s request for IUD insertion was denied by the Catholic institution. . The investigation was provoked by state deputy Andrea Werner (PSB-SP), who sent a criminal report to the MP-SP.

Jurists consulted by People’s Gazette state that forcing Catholic confessional hospitals to carry out contraceptive procedures violates freedom of conscience and belief, since institutions can also be endowed with fundamental rights.

“Wanting that the State regulate the procedures carried out within a confessional institution is a tyrannical invasion of the sphere of freedom guaranteed to religious institutions”, says Bruno Coletto, doctor in Law.

Denilson Freitas, Consumer Justice prosecutor, was responsible for opening the civil investigation against the hospital. The institution has 15 days to justify the reasons for refusing contraceptive procedures, in addition to explaining whether the denials apply to SUS, private or health plan patients.

For the prosecutor, “the refusal to carry out contraceptive procedures may represent an offense to the principle of human dignity and may accentuate undue social exclusions, as it does not guarantee the right to health and family planning”.

Hospital has the right to freedom of conscience and belief

Ana Luiza Rodrigues, PhD in Philosophy and General Theory of Law, states that fundamental rights, when applied to institutions, must be related to the purpose of the legal entity. “The São Camilo Hospital was founded by Camillian Catholic religious and is an apostolic work. It is evident that, due to the root of the institution and the purpose for which it was founded, it is entitled to a right to freedom of conscience and belief”, she explains.

The Federal Constitution guarantees freedom of conscience and belief in its article 5, section VI. “Religious freedom is a sphere of immunity. In other words, it is a space where others, and the State in particular, cannot intervene. Religious freedom is for people to profess their faith, but also for institutions to profess their faith in an institutionalized way”, adds Coletto.

In the inquiry, prosecutor Denilson Freitas cites Law 9,656 of 1998, which requires coverage of services in the case of family planning. However, Rodrigues comments that this law is applied to health insurance providers and not to hospitals. “The law itself does not apply to hospitals, but, even if there were an applicable law, the constitutional right to freedom of conscience and belief overrides contrary infra-constitutional legislation”, he assesses.

The patient’s right was not violated because he has the possibility of inserting the IUD in another hospital

“The patient’s right to family planning is not harmed by the hospital’s refusal, because she can carry out the procedure in another hospital unit. However, if it is forced to carry out this contraceptive procedure, the hospital’s right is irremediably violated”, analyzes Rodrigues.

“In this clash of rights, there is no need to even mention that the patient was denied her right. Contraceptive procedures do not involve harm to the patient’s health. We are talking about a preventive pregnancy procedure, where there is no risk of death for the patient”, she adds.

Hospital São Camilo informed in a note that “the guideline is not to perform contraceptive procedures on men or women, except in cases of health risk”. For Coletto, the fact that the institution carries out the procedures in serious cases would even rule out the hypothesis of discrimination.

Contacted by the reporter People’s GazetteHospital São Camilo did not want to comment on the opening of the investigation.