Regulation of Conscientious Objection to Abortion

Since abortion laws were liberalized in Western Europe, conscientious objection (CO) to abortion has become increasingly contentious. We investigated the efficacy and acceptability of laws and policies that permit CO and ensure access to legal abortion services. This is a comparative multiple-case study, which triangulates multiple data sources, including interviews with key stakeholders from all sides of the debate in England, Italy, Norway, and Portugal. While the laws in all four countries have similarities, we found that implementation varied. In this sample, the ingredients that appear necessary for a functional health system that guarantees access to abortion while still permitting CO include clarity about who can object and to which components of care; ready access by mandating referral or establishing direct entry; and assurance of a functioning abortion service through direct provision or by contracting services. Social attitudes toward both objection and abortion, and the prevalence of CO, additionally influence the degree to which CO policies are effectively implemented in these cases. England, Norway, and Portugal illustrate that it is possible to accommodate individuals who object to providing abortion, while still assuring that women have access to legal health care services. Wendy Chavkin, MD, MPH, is professor of population and family health and obstetricsgynecology at Columbia University’s Mailman School of Public Health and College of Physicians and Surgeons. Laurel Swerdlow, MPH, is advocacy director at Planned Parenthood Advocates of Oregon. Jocelyn Fifield, MPH, recently graduated from Columbia University’s Mailman School of Public Health and has been a consultant at Ibis Reproductive Health. Please address correspondence to Wendy Chavkin. Email: [email protected]. Competing interests: None declared. Copyright © 2017 Chavkin, Swerdlow, and Fifield. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited. Health and Human Rights Journal HHr HHR_final_logo_alone.indd 1 10/19/15 10:53 AM w. chavkin, l. swerdlow, and j. fifield / Abortion and Human Rights, 55-68 56 J U N E 2 0 1 7 V O L U M E 1 9 N U M B E R 1 Health and Human Rights Journal Introduction Abortion laws were liberalized in many countries throughout Western Europe from the 1960s onward, with first-trimester abortion becoming functionally available upon a woman’s request within varied legal structures and requirements. Out of political compromise or pragmatic necessity, clauses allowing medical practitioners to refuse to perform abortions on grounds of conscience were inserted into many of these laws. Since then, conscientious objection (CO) has become increasingly politically contentious. Some argue that the loss of staff willing to perform abortions—on account of their invoking CO—has effectively limited access for women seeking legal abortions in certain jurisdictions, while others stress the importance of respecting individual conscience. CO has been defined as “the refusal to participate in an activity that an individual considers incompatible with his/her religious, moral, philosophical, or ethical beliefs.”1 Although CO to abortion is reportedly widespread, a limited number of countries have laws or policies that regulate its practice. In 2013, Wendy Chavkin et al. conducted a scan of national laws and policies that regulate CO to abortion, finding that most of those countries with regulations permit CO but circumscribe the practice in order to protect women’s access to care.2 A similar review from 2015 found only 22 countries that explicitly regulate CO to abortion, most of which are in Europe and have legally permissible abortion and national health care systems.3 Many of these countries stipulate who is eligible to object and restrict the circumstances in which CO is authorized. However, a few countries, primarily in Scandinavia and Eastern Europe, do not discuss CO in their abortion laws, which has been interpreted to mean that providers lack a legal right to object.4 We embarked on this exploratory multiple-case study of four countries whose abortion laws contain CO clauses in order to assess the efficacy and acceptability of national policies that regulate CO to abortion—that is, do their regulations effectively permit CO while still ensuring that women have access to abortion care? We restricted our inquiry to those countries that have CO clauses in statute, legally permissible abortion, and publicly funded health care provision in which the state has an obligation to provide an agreed-on bundle of health care services to its citizens. The selection of countries was also based on the feasibility of stakeholder interviews and the extent to which in-person interviews would expand our understanding of a regulation’s perceived impact on abortion access. The four countries meeting these requirements are all high-income Western European countries with liberal abortion regimes. Lawmakers seeking to liberalize national abortion policies must consider a wide variety of legal, social, economic, and cultural factors that influence access to abortion, of which CO is only one. We hope that these case studies can inform stakeholders about the varied experiences of countries which purport to regulate CO in a manner that enables both objection and abortion access. Each of these four countries has ratified the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the European Convention on Human Rights, and the European Social Charter. Article 18(1) of the International Covenant on Civil and Political Rights guarantees the right to freedom of thought, conscience, and religion, while Article 18(3) explicitly authorizes restrictions on exercise of conscience when necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. Article 12 of the International Covenant on Economic, Social and Cultural Rights enshrines the right to health, and Articles 16(e) and 12 of the Convention on the Elimination of All Forms of Discrimination against Women affirm the reproductive rights of women and access to family planning care, respectively. International and regional human rights bodies charged with interpreting these treaties and supervising the compliance of states have determined that the freedom to manifest religion or beliefs can be subjected to restrictions. Specific findings by such bodies include the requirements that laws and polw. chavkin, l. swerdlow, and j. fifield / Abortion and Human Rights, 55-68 J U N E 2 0 1 7 V O L U M E 1 9 N U M B E R 1 Health and Human Rights Journal 57 icies permitting CO must pertain to individuals, not institutions; must require objecting physicians to refer women to alternate accessible and willing providers; and must ensure that sufficient numbers of non-objecting providers are available. The professional ethical guidelines of many countries’ medical, nursing, and midwifery societies support the option of CO but require objecting providers to be forthright about their objection, to provide referrals, and to provide treatment in medically urgent situations (see Table 1).