—Teresa Violante, Friedrich-Alexander Universität Erlangen-Nürnberg
[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]
Universal conscientious objection in the health sector challenges the provision of legally guaranteed services, thus possibly jeopardizing the right to health of affected persons. Selective conscientious objections have been proposed as a remedy to increase the number of medical staff providing abortion services. These relate to the refusal of specific abortion acts in accordance with the professionals’ moral judgments. Even if due referral to another professional is provided and the provision of the service is not obstructed, these conscience claims indirectly harm the dignity of women and other pregnant persons and should therefore be rejected.
Conscientious objection and healthcare services
The global landscape of the right to abortion was shaken last year as the US Supreme Court revoked the federal constitutional right of access to abortion. The backsliding of the right to abortion is visible in other jurisdictions as well. In Poland, there has been incremental restriction of the legal framework on account of the “illegitimate” Constitutional Court’s rulings that have narrowed the grounds for legal abortion. Currently, termination of the pregnancy is only legal if the pregnancy is the result of rape, or if the mother’s life is in danger. However, even this restrictive framework is often severely hindered by frequent claims from doctors and medical institutions of conscientious objection (CO). The European Committee of Social Rights (ECSR) last report on Poland was deferred on 31 December 2021 for lack of information provided by Poland, including data on access to abortion, and recommended the removal of existing barriers and abortion stigma, “including through the proper monitoring and regulation of the practice of conscientious objection.”[1]
Conscientious objection has been identified as barrier to reproductive rights in other countries. The ECSR has found Italy to be in breach of Article 11 of the European Social Charter (right to protection of health) for the lack of non-objecting medical practitioners and other health personnel in several health facilities. The Committee concluded that the situation amounted to an intersectional or overlapping discrimination against women originating in certain regions, health status and socioeconomic status, particularly harming vulnerable categories who are denied access to abortion services as a consequence of the public authorities’ failure to balance the consequences caused by the exercise of the conscience clause.
CO has a long history in the context of military services. Claims of conscience in the context of healthcare services are a more recent phenomenon. Their importance grew in substance following the US Supreme Court Roe v Wade decision that was followed by the 1973 Church Amendment.
From a human rights perspective, there are considerable differences between objection to compulsory military service that does not have an immediate effect upon third parties and refusal to provide health services based on conscience. The latter situation has an immediate impact on the sphere of third parties who are legally entitled to access a medical service. The exercise of CO can therefore hinder or jeopardize the right to health of third parties. The latest WHO Abortion Care Guideline (2022) states that CO in abortion provision may become indefensible “if it proves impossible to [be regulated] in a way that respects, protects and fulfils abortion seekers’ rights”.[2]
The European Court of Human Rights (ECtHR) has delivered important decisions in the context of CO and reproductive rights. In Pichon and Sajous v. France, it held that freedom of conscience and religion protected under Article 9 of the Convention is one of the foundations of a “democratic society” but rejected recognizing the right of CO of pharmacists that had refused to sell contraceptives to women who had been supplied with valid prescriptions. In Ellinor Grimmark v Sweden and Linda Steen v Sweden, the ECtHR ruled for the first time in the context of refusals to provide abortion services grounded on conscience reasons. The Court accommodated Sweden’s legislative framework that allows employers to request in advance that health employees are prepared to fulfill all required duties inherent in a job position. As midwives who objected to assist in performing abortions, they were denied employment in that position, being free to return to their previous category of nurses. The Court recognized the refusal as a manifestation of religion protected under Article 9 of the Convention. Given the effects that these manifestations have on the rights of others, the judges found that they can be limited as long as the conditions specified in paragraph 2 of that provision are met: the limitation must be prescribed by law and be necessary in a democratic society for one of the legitimate aims listed. In both cases, the interference was entailed in Swedish legislation, and the interference fulfilled the legitimate aim of protecting the right to health of women. The Court also found that the interference was necessary in a democratic society and proportionate. As Sweden provides nationwide abortion services, it has a positive obligation to organize a health system in a way that the exercise of freedom of conscience by healthcare professionals “does not prevent the provision of such services.”
These three rulings by the ECtHR were delivered as inadmissibility decisions which prevented the Court from engaging comprehensively with the subject matter. Nevertheless, this line of case law endorses a more restrictive view on CO which is now put on a more precarious basis than with its earlier recognitions.[3]
The ECSR and the Committee on the Elimination of Discrimination against Women (CEDAW) have also consistently stressed the importance of balancing the right of CO with the right to health of women and emphasized the State’s duty to maintain a system that does not deprive women from effective access to rights that are legally protected.
Selective conscientious objection in the context of abortion
Selective CO has been praised as a remedy to increase the number of professionals willing to perform abortion services.[4] It differentiates from universal CO in that the claimant is not opposed to participating or providing certain services in all cases but only requests the right to be excused in specific circumstances that offend his or her moral judgment. Selective conscientious objectors do not object to the act but refuse to practice it certain circumstances. In the context of health services, SCO raises difficult challenges from the perspective of nondiscrimination.
The Portuguese legislation allows physicians to object to any acts included in abortion provision and only requests professionals to identify the specific legal acts to which they object.[5] This “partial objection”[6] has been qualified as unique and praised for its “nuanced gradation of objection”.
Some grounds of selection can be the reasons for pregnancy termination (eg. professionals may be willing to be involved in termination of pregnancies originated in rape or when the woman’s life is at risk), or the number of abortions previously incurred. Arguing in favor of selective CO in the case of repetitive abortion, Oliveira e Silva expressly affirms that “[r]epeat abortion could reflect the woman’s and/or her partner’s negligent behaviour, and many doctors would prefer not to be the accessory to an intervention they morally disapprove of.”[7] The proponents of selective CO therefore expressly admit to it being an instrument to protect the moral judgments of objectors.[8]
The Colombian Constitutional Court has stated that CO cannot stem from a person’s own views regarding abortion.[9] The Court affirmed that the exercise of the right to CO cannot constitute a mechanism of discrimination and violation of the fundamental rights of women.
Abortion-restrictive regulations have already been qualified as expression of discrimination for representing harms inflicted on women for who they are, and not conforming with gender stereotypes about the role they are expected to play in society.[10] In fact, it is hard to see how accommodating selective CO can be fully compatible with the operation of the principle of nondiscrimination.
Absolute CO represents a claim to legal immunity afforded by the law that exempts officials from the practice of the act, regardless of the circumstances. In the context of abortion, selective CO puts the officials in the position of moral judges of the behavior of women and other pregnant persons.
Selective CO grants the possibility to judge in which circumstances the woman is worthy of the protection entailed in the democratic law. Such judgment is the sole province of legislatures in constitutional democracies and can only be formulated in general terms. It exposes pregnant persons to the judgment of their attitudes and behaviors by medical personnel, reinforcing stereotypes and stigma. Even if women are referred to other professionals, an indirect harm to their dignity remains apparent in these cases. As Bribosia and Rorive claim, “a commitment to equality and nondiscrimination requires including indirect harm in the equation. If dignity is still undermined, social prejudice perpetuates and the structural discrimination often embedded in power relationships is not questioned.”[11]
Suggested citation: Teresa Violante, Abortion and Selective Conscientious Objection, Int’l J. Const. L. Blog, May 24, 2023, at: http://www.iconnectblog.com/abortion-and-selective-conscientious-objection/.
[1] Conclusions available at https://hudoc.esc.coe.int/eng/#{%22sort%22:[%22ESCPublicationDate%20Descending%22],%22tabview%22:[%22document%22],%22ESCDcIdentifier%22:[%22XXII-2/def/POL/11/1/EN%22]}.
[2] Available at https://www.who.int/publications/i/item/9789240039483.
[3] Wojciech Brzozowski, “The Midwifes Tale: Conscientious Objection to Abortion after Grimmark and Steen”, Oxford Journal of Law and Religion, Volume 10, Issue 2, June 2021, 298-316.
[4] Miguel Oliveira da Silva, “Reflections on the legalisation of abortion in Portugal”, The European Journal of Contraception & Reproductive Health Care, Volume 14, 2009, 245-248.
[5] Law 16/2007, April 7 2007, Article 6.
[6] Wendy Chavkin et al., “Regulation of Conscientious Objection to Abortion: An International Comparative Multiple-Case Study, Health Hum Rights, 19(1), 2017, 55-68.
[7] Ob. Cit., p. 246.
[8] Last year, a proposal to include abortion as a criterion to penalize family doctors for their performance was abandoned by the Health Ministry following intense public pressure. Such a criterion was seen as expressing an inadmissible moral judgment.
[9] Decision T-209 of 2008.
[10] Reva Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection”, Stanford Law Review, Jan. 1992, Vol. 44, No 2, 261-381.
[11] Emannuelle Bribosia & Isabelle Rorive, “Seeking to Square the Circle: A Sustainable Conscientious Objection in Reproductive Health Care”, in Susana Mancini & Michel Rosenfeld (eds.). The Conscience Wars: Rethinking the Balance between Religion, Identity and Equality, 2018, 409.
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