Although the federal government and most states have enacted laws protecting healthcare providers’ rights to refuse to provide or participate in procedures to which they have moral or religious objections, most such laws are deficient and many have been met with hostile judicial interpretations that have diminished their scope and strength.
This issue’s “Legal Briefing” column covers legal developments pertaining to conscience clauses and conscientious refusal. Not only has this topic been the subject of recent articles in this journal, but it has also been the subject of numerous public and professional discussions. Over the past several months, conscientious refusal disputes have had an unusually high profile not only in courthouses, but also in legislative and regulatory halls across the United States.
The right to conscientious objection is founded on human rights to act according to individuals’ religious and other conscience. Domestic and international human rights laws recognize such entitlements. Healthcare providers cannot be discriminated against, for instance in employment, on the basis of their beliefs.
The Constitutional Court of Colombia has issued a decision of international significance clarifying legal duties of providers, hospitals, and healthcare systems when conscientious objection is made to conducting lawful abortion. The decision establishes objecting providers’ duties to refer patients to non-objecting providers, and that hospitals, clinics, and other institutions have no rights of conscientious objection.
The practice of conscientious objection often arises in the area of individuals refusing to fulfil compulsory military service requirements and is based on the right to freedom of thought, conscience and religion as protected by national, international and regional human rights law.
Polish laws specify the parties responsible for lawful medical care in the availability of abortion differently than the Resolution of the Council of Europe. According to Polish regulations they include all Polish doctors while according to the Resolution, the state.
English law expects health professionals to have, and act upon, consciences, but formal conscience clauses are not the main legal recognition of this expectation. Rather, they should be regarded as an anomaly with roots in very specific political settlements between society and health professions, whose legitimacy is historically contingent, and as an aspect of the ‘price’ to be paid for securing services.
In this 574-page document, conscientious objection comes up a number of times and one section at p.172 is devoted to it. The overarching message is that “the primary conscientious duty of obstetrician-gynaecologists 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 of care.” (p.41)
The aim of this paper is to define a set of proposals to inform European institutions in the regulation of conscientious objection to abortion. The board of the European Society of Contraception and Reproductive Health Care (ESC) was informed on the elements that should in the opinion of the authors be included in a future regulation of conscientious objection to abortion in Europe.
Since abortion became legal nationwide, federal and state “conscience clauses” have been established to define the context in which health professionals may decline to participate in contested services. Patients and health care providers may act according to conscience in making health care decisions and in deciding whether to abstain from or to participate in contested services.