Religious Minorities and Justice in Healthcare

Abstract

There have been huge changes in the political and social realities of Spain in the last thirty years. The transition to democracy after 1978 replaced the monolithic ideology of the Franco dictatorship with diversity, through democratic processes.Footnote1 This catalyst has been joined by another more recent and equally significant one: immigration. The incorporation of people from different backgrounds brings convictions and worldviews that struggle to coexist with traditional ones. In a short period of time, Spain has evolved from an unequivocal identification with national Catholicism to a mosaic of different realities and expectations. This increasing globalization and the demands of democracy have made it necessary to address hitherto unprecedented situations in the country. Debate about headscarves and crucifixes comes up in the schools, and in healthcare equally controversial issues arise in connection with moral or religious beliefs. Patients who request halal or kosher menus at the hospitals, refuse to be seen by male or female doctors, or reject the standard practice of care are only a few examples of these changes. The right to health protection is one of the fundamental social rights established in the Spanish Constitution of 1978, which founded a state obligation to provide adequate medical care and guaranteed equal access to all healthcare resources financed with public funds. This constitutional recognition, together with respect for the right to refuse treatment as an expression of autonomy, could ironically lay the grounds for an unexpected outcome: an effective right that entitles patients to specific therapeutic practices of their own choice.

This was the issue that arose in a ruling by the Spanish Constitutional Court, the STC 166/1996, on October 28, involving a Jehovah’s Witness who refused to undergo a blood transfusion and appealed for the national healthcare system to reimburse him for the expenses he had to pay for an alternative treatment obtained in a private clinic. This court case is worth considering because it constitutes the only legal ruling on reimbursement of healthcare expenses for religious reasons ever issued by the Spanish Constitutional Court. Its importance becomes even greater when one considers the combination of increasing resource scarcity and the number and variety of beliefs found in present-day Spanish society.

This article argues that although patients’ treatment preferences are central to healthcare ethics, they should be balanced against considerations of distributive justice. Specifically, the central question is whether the right to freedom of religion justifies filling special healthcare requests.