Law and Policy Guide: Conscientious Objection

05.29.2019

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Conscientious Objection

In the context of abortion care, conscientious objection is when a health care worker or institution refuses to administer abortion services or information on the grounds of conscience or religious belief. When conscientious objection is not regulated, it can significantly undermine access to abortion services.

Human Rights Norms

UN Treaty Monitoring Bodies

UN treaty monitoring bodies (TMBs) have not explicitly determined whether states have a positive obligation under international human rights law to recognize conscientious objection in the provision of health care. However, when states permit health care professionals to invoke conscientious objection, UN TMBs have consistently raised concern about the impact on access to abortion services.1 UN TMBs have recognized that where conscientious objection is permitted, states must establish and implement an effective regulatory framework guaranteeing that these refusals of care do not undermine or hinder women and girls’ access to legal reproductive health care.2

To guarantee access to services when a state permits conscientious objection, UN TMBs have outlined that, at a minimum, states must:

  • Guarantee an adequate number and appropriate geographic dispersal of willing providers, in both public and private health facilities.3
  • Limit the invocation of conscientious objection to individuals and prohibit institutional refusals of care.4
  • Establish an effective referral system to ensure patients can access another medical professional who is willing and able to provide abortion care.5
  • Impose clear limits on the legality of refusals, such as ensuring they are not permitted in urgent or emergency situations.6
  • Implement adequate monitoring, oversight and enforcement mechanisms, including effective systems to monitor the number and location of refusing medical professionals and to oversee compliance with laws and policies regulating the practice of refusals. They must also establish and implement meaningful enforcement procedures to address, sanction, and prevent non-compliance.7

European Human Rights Bodies

The European Court of Human Rights has recognized that if states choose to allow conscientious objection in healthcare settings, they have a positive obligation under the European Convention on Human Rights to organize their health services in such a way as to ensure that it does not prevent patients from accessing lawful abortion services.8 See, for example, R.R. v. Poland and P. and S. v. Poland.

The European Committee of Social Rights (ECSR) has also recognized that:

  • The European Social Charter does require states to permit conscientious objection for health care workers, nor does it confer a right to conscientious objection on the staff of the health system of a state party.9
  • Where a state party chooses to allow medical professionals to refuse to provide legal abortions, it must take effective measures to ensure such refusals do not jeopardize women’s timely and effective access to such services.10

African Human Rights Bodies

In General Comment 2 on Article 14 of the Maputo Protocol, the African Commission on Human and Peoples’ Rights recognizes that where health care providers may invoke conscientious objection, state parties are responsible for ensuring the necessary infrastructure to enable women to have timely referrals to other providers; that only those directly involved in service provision may invoke conscientious objection, and not institutions; and that conscientious objection cannot be invoked where a woman’s health is at risk or when she requires emergency care or treatment.11

Inter-American Human Rights Bodies

The Inter-American Commission on Human Rights has also stated that, while a health professional may exercise contentious objection, “they should also transfer the patient without objection to another health professional who can provide what the patient is seeking...This is in order not to create barriers in access to services.”12

Global Medical Standards

Global health organizations, such as the World Health Organization (WHO) and the International Federation of Gynaecology and Obstetrics (FIGO) have unequivocally recognized the obligation of health professionals to provide appropriate referrals to other health practitioners if they refuse to provide particular services due to personal beliefs.13 They further recognize that health professionals may not invoke conscientious objection in emergency situations, such as where the woman’s life or health is in danger.14

In its Safe abortion: technical and policy guidance for health systems, the WHO recognizes that health services should be organised to ensure that the exercise of conscientious objection by health care providers does not prevent patients from obtaining access to services. This includes ensuring women are promptly referred “a willing and trained provider in the same, or another easily accessible health-care facility, in accordance with national law,”15 and where women present with complications from unsafe or illegal abortions, these women are “treated urgently and respectfully, as any other emergency patient, without punitive, prejudiced or biased behaviours.”16

FIGO’s Ethical Guidelines on Conscientious Objection stipulate that health care professionals are required to provide patients with timely access to medical services and information about the medically recommended options for their care, including any procedures that the health professional objects to provide on the grounds of conscience.17 FIGO further recognizes that health care practitioners “have a professional duty to abide by scientifically and professionally determined definitions of reproductive health services, and to exercise care and integrity not to misrepresent or mischaracterize them on the basis of personal beliefs.”18 FIGO guidelines also stipulate that “[t]he primary conscientious duty of obstetrician-gynecologists is at all times to treat, or provide benefit and prevent harm to, the patients for whose care they are responsible. Any conscientious objection to treating a patient is secondary to this primary duty.”19

Comparative Law

In Sweden, Iceland, and Finland there is no recognized legal right to conscientious objection for health care professionals related to the performance or participation in a medical procedure such as the termination of a pregnancy.20 Similarly, Ethiopia explicitly does not permit health professionals to refuse to provide legal abortion services on the grounds of personal belief.21

A number of countries that permit conscientious objection have put in place strong measures to ensure it does not obstruct access to abortion services. Examples of such regulations include:

  1. Not permitting health care providers to claim conscientious objection in circumstances where either the life and health of the woman is at risk.
    • In Ireland the law recognizes that health care workers may not object to administering abortion services where there is an immediate risk to the life, or serious harm to the health, of the pregnant woman.
    • In Barbados the law states that despite the right to conscientious objection, this “does not affect the duty of a person to participate in treatment for the termination of a pregnancy that is immediately necessary to save the life of the pregnant woman or to prevent grave permanent injury to her physical or mental health.”22
  1. Ensuring a strong referral process to a health care provider who will perform abortion services.
    • In Portugal the law provides that “health professionals who are conscientious objectors should ensure that pregnant women requesting the interruption of pregnancy are sent to the competent services within the legal deadlines.” In Mozambique “the competent medical practitioner or health professional who has conscientious objections against termination of pregnancy shall indicate to the pregnant woman another competent medical practitioner or health professional who is willing to terminate the pregnancy.”23
  1. Limiting conscientious objection to the direct health care provider and not to ancillary staff or an institution as a whole.
    • In Argentina the law provides that “the objection of conscience is always individual and cannot be institutional.”24

When conscientious objection is not regulated, it can significantly undermine access to abortion services. For example, in Italy, according to official data from the Italian Ministry of Health, approximately 70% of gynecologists, 51% of anesthesiologists and 44% of mon-medical staff refuse to provide legal abortion care and related services.25 In International Planned Parenthood Federation – European Network (IPPF-EN) v. Italy, the European Committee of Social Rights found that in some instances women were being forced to travel to other regions of Italy or even abroad, which negative impacts on their health and increased costs.26 Further, the Committee recognized that conscientious objection may in effect deprive some women of any effective access to abortion services.27 Alarmingly, the Committee also found that there was a re-emergence of clandestine abortions in Italy.28

  • 1. See e.g., UN Human Rights Committee, Concluding Observations: Poland, para. 8, UN Doc. CCPR/C/SR.2251 (2004); UN Human Rights Committee, Concluding Observations: Poland, para. 12. UN Doc. CCPR/C/POL/CO/6 (2010); UN Human Rights Committee, Concluding Observations: Poland, para. 23, CCPR/C/POL/CO/7 (2016); UN Human Rights Committee, Concluding Observations: Colombia, para. 21, CCPR/C/COL/CO/7 (2015); UN Human Rights Committee, Concluding Observations: Argentina, para. 11, CCPR/C/ARG/CO/5 (2016); Human Rights Committee, Concluding Observations: Italy, para. 16, UN Doc. CCPR/C/ITA/CO/6 (2017; CEDAW Committee, Concluding Observations: Mexico, para. 41-42, CEDAW/C/MEX/CO/9 (2018); CEDAW Committee, Concluding Observations: Argentina, para. 33, CEDAW/C/ARG/CO/7 (2016); CEDAW Committee, Concluding Observations: Canada, para. 40-42, CEDAW/C/CAN/CO/8-9 (2016); CEDAW Committee, Concluding Observations: Portugal, para. 42-43, CEDAW/C/PRT/CO/7 (2009); Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, para. 28, UN Doc. E/C.12/POL/CO/5 (2009); Committee against Torture, Concluding, Concluding Observations: Poland, para. 23, CAT/C/POL/CO/5-6 (2013).
  • 2. See, e.g., ESCR Committee, Gen. Comment No. 22, paras. 14, 43; CEDAW Committee, Gen. Recommendation No. 24, paras. 11, 13; SR Health, 2011 Interim Report, para. 65(m); CEDAW Committee, Concluding Observations: Hungary, paras. 30, 31(d), U.N. Doc. CEDAW/C/HUN/ CO/7-8 (2013); Poland, para. 37(b)-(c), U.N. Doc. CEDAW/C/POL/ CO/7-8 (2014); Argentina, para. 33(c), U.N. Doc. CEDAW/C/ARG/ CO/7 (2016); Italy, paras. 41(d), 42 (d), U.N. Doc. CEDAW/C/ITA/ CO/7 (2017); Human Rights Committee, Concluding Observations: Argentina, paras. 11-12, U.N. Doc. CCPR/C/ARG/CO/5 (2016).
  • 3. ESCR Committee, General Comment No. 22 on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), para. 43, U.N. Doc. E/C.12/GC/22 (2016) [hereinafter ESCR Committee, Gen. Comment No. 22]., para. 14
  • 4. CEDAW Committee, Concluding Observations: Romania, para. 33(c), U.N. Doc. CEDAW/C/ROU/CO/7-8 (2017); Hungary, paras. 30-31, U.N. Doc. CEDAW/C/HUN/CO/7-8 (2013); CRC Committee, Concluding Observations: Slovakia, para. 41(f), U.N. Doc. CRC/C/ SVK/CO/3-5 (2016);
  • 5. ESCR Committee, Gen. Comment No. 22, supra note 5, para. 43; Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Interim rep. of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, paras. 65(m), U.N. Doc. A/66/254 (2011); CEDAW Committee, Gen. Recommendation No. 24, supra note 3, para. 11; CEDAW Committee, Concluding Observations: Romania, para. 33(c), U.N. Doc. CEDAW/C/ROU/CO/7-8 (2017); Slovakia, para. 43, U.N. Doc. A/63/38 (2008); ESCR Committee, Concluding Observations: Poland, para. 28, U.N. Doc. E/C.12/POL/CO/5 (2009).
  • 6. ESCR Committee, Gen. Comment No. 22, supra note 5, para. 43.
  • 7. CEDAW Committee, Concluding Observations: Hungary, paras. 30-31, U.N. Doc. CEDAW/C/HUN/ CO/7-8 (2013); CRC Committee, Concluding Observations: Slovakia, para. 41(f), U.N. Doc. CRC/C/SVK/CO/3-5 (2016); CEDAW Committee, Concluding Observations: Poland, para. 37(b), U.N. Doc. CEDAW/C/POL/CO/7-8 (2014).
  • 8. R.R. v. Poland, App. No. 27617/04, Eur. Ct. H.R, (2011), para. 206. The Court stated “[s]tates are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”
  • 9. FAFCE v. Sweden, Compl. No. 99/2013, Eur. Comm. Soc. R. The Committee stated that it “considers that Article 11 of the Charter [the right to protection of health] does not impose on states a positive obligation to provide a right to conscientious objection for healthcare workers.”
  • 10. In IPPF-EN v. Italy Complaint No. 87/2012, Eur. Comm. Soc.R and CGIL v. Italy Complaint No. 91/2013, Eur. Comm. Soc. R., the Committee specified that if, under its domestic law, a state party to the Charter chooses to allow medical professionals to refuse to provide legal abortion care, it must take effective measures to ensure that such refusals do not jeopardize women’s timely and effective access.
  • 11. The African Commission on Human and Peoples’ Rights (African Commission), General Comment No 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2) (a) and (c) of the Maputo Protocol, at para. 26.
  • 12. The Inter-American Commission on Human Rights, Access to Information on Reproductive Health from a Human Rights Perspective, OEA/Ser.L/V/II.   Doc. 61 (2011) at para. 94.
  • 13. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 69 (2d ed. 2012) [hereinafter “Safe Abortion Guidelines”]; FIGO Committee for the Study of Ethical Aspects of Human Reproduction and Women’s Health, Ethical Guidelines on Conscientious Objection, in Ethical Issues in Obstetrics and Gynecology, 27 (2012) [hereinafter “Ethical Guidelines on Conscientious Objection”].
  • 14. WHO, Safe Abortion Guidelines 69 (2d ed. 2012); FIGO, Ethical Guidelines on Conscientious Objection 27 (2012).
  • 15. WHO, Safe Abortion Guidelines 69 (2d ed. 2012).
  • 16. Id. at 69.
  • 17. FIGO, Ethical Guidelines on Conscientious Objection 26-27 (2012).
  • 18. Id. at 27.
  • 19. FIGO, supra note 15, at 27.
  • 20. See generally: Sweden: Eur. Comm. Soc. Rights, FAFCE v. Sweden, Compl. No. 99/2013, at 20 (Mar. 7, 2013); Finnish Supreme Administrative Court, KHO: 779/32/75 (1977).
  • 21. Ethiopia: Food Medicine and Healthcare Administration and Control Councils of Ministers Regulation No 299 2013, art. 84. The law states that “[a] health professional may not refuse on grounds of personal belief to provide services such as contraceptive, legal abortion and blood transfusion.”
  • 22. Ireland: Health (Regulation of Termination of Pregnancy) Act 2018, (Act No. 31/2018), s 22(2); Barbados: Medical Termination of Pregnancy (1 L.R.O./1985), CAP. 44A, s10(4).
  • 23. See, e.g., Portugal: Portaria n. 741-A/2007, Diário da República, 1.a série—No. 118 (2007), art. 12(3); Mozambique: Boletim da República, Publicação Oficial da República de Moçambique I série – No. 147 (2017), art. 5(3).
  • 24. See, e.g.,  Argentina: Guía Técnica para la Atención Integral de los Abortos No Punibles, (2010), art 6.3.3.
  • 25. International Planned Parenthood Federation – European Network (IPPF-EN) v. Italy, Complaint No. 87/2012, Eur. Comm. Soc. R., paras. paras. 82-85 (2014). See also Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013, Eur. Comm. Soc. R., paras. 139-140 (2016).
  • 26. International Planned Parenthood Federation – European Network (IPPF-EN) v. Italy, Complaint No. 87/2012, Eur. Comm. Soc.R., para. 191 [hereinafter IPPF-EN v. Italy].
  • 27. IPPF-EN v. Italy Complaint No. 87/2012, Eur. Comm. Soc.R., para 193.
  • 28. IPPF-EN v. Italy Complaint No. 87/2012, Eur. Comm. Soc.R,, para 192.