The postulate to remove the institution of the conscience clause from the Polish legal order

Abstract

The author presents her own positions regarding the conscience clause in the legal system on three levels: de lege lata the subjective and objective scope of the conscience clause based on the meaning of Art. 53 of the Constitution and Art. 39 of the act on the professions of doctor and dentist, assessment of the legitimacy of the conscience clause de lege lata, formulation of de lege ferenda postulates. Criticism of the legitimacy of the general clause refers to four fundamental issues: 1) the complete lack of definition of conscience, its characteristics, and even authenticity, 2) the subjective and objective scope of the conscience clause, 3) the instability of the legal system, and 4) discrimination against third parties affected by consequences of the conscience clause as participants in trading. The conducted considerations lead to the conclusion that the conscience clause should be removed in the Polish legal order, and in emergency situations, the criminal law assessment should be based on Art. 26 of the Penal Code.