Putting Women First
Regulating Conscientious Objection to Lawful Abortion in Europe
This is the Executive Summary of my Master of Laws Thesis for the Advanced LLM in European and International Human Rights Law at Leiden Law School, Leiden University (06 July 2018)
Please note that my views on the issue have evolved since I submitted this thesis last year. A footnote in the introduction reads:
“This thesis uses the terms girls and women and female pronouns when referring to patients seeking abortion, but it is important to note that not every patient seeking an abortion may identify as a woman.”
I know recognise that I could have done a better job by not using gendered language. An alternate title could be: “Putting Reproductive Agency First: Regulating Conscientious Objection to Lawful Abortion”
International and European human rights standards affirm the need to ensure full and free access to abortion. States are under an obligation to remove all de jure or de facto barriers to its access, one of which is healthcare providers’ refusal to perform abortions on the basis of their conscience. This thesis seeks to understand and analyse the influence of international and European human rights standards on conscientious objection to lawful abortion, including by balancing healthcare providers’ right to belief with their professional obligations to their patients, and make policy suggestions to strengthen access to abortion.
This thesis begins with a review of the standards laid down by the UN human rights treaty bodies and the medical standards on conscientious objection to abortion with a view of highlighting their commonalities. It examines jurisprudence of the European Court of Human Rights and the European Committee for Social Rights on the scope of conscientious objection by individual practitioners, auxiliary personnel, and institutional refusal. It examines the domestic law and practice in Poland, Italy, Sweden and Norway in light of these standards and analyses the different approaches to and degrees of regulation of conscientious objection to abortion.
The right to manifestation of conscience is not absolute and can be limited on grounds of public health. European jurisprudence affirms that this right cannot be allowed to the extent that it undermines women’s health. Unregulated use of conscientious objection manifests itself through institutional refusal, prioritisation of foetal health over the pregnant woman’s and has devastating impact on women’s lives and health. The UN Human Rights Committee held that to force a woman to carry a harmful pregnancy to term at the expense of her health amounts to torture and violates her right to private life. Where states allow conscientious objection to abortion, it may only be invoked by individuals directly involved in the procedure and not any allied staff who refer or arrange for an abortion or provide pre- and post-abortion care.
In light of the above, this thesis puts forth three primary policy suggestions. First, states must recognise the discriminatory nature of conscientious objection. They must acknowledge conscientious objection as a barrier to accessing abortion and regulate its practice with a view of completely eliminating the practice. Second, in view of the social and political conditions, if the state chooses to allow conscientious objection, it must strictly regulate its use. It must clarify that the primary obligation of a health care provider is to their patient and all other considerations are secondary. The regulation must explicitly mention that it can only be invoked by individual practitioners who are directly involved in the procedure. Women should be informed of their doctor’s objection in advance and the objecting doctors should be under an obligation to make timely referral to another able, willing, and accessible doctor. If referral is not possible, inaccessible, or if the woman’s life is in danger, conscientious objection cannot be invoked. Third, to ensure full and free access to abortion, states must establish independent regulatory and oversight mechanisms. Their procedures must be accessible, transparent, timely, give due regard to the patients’ views, and their decisions should be subject to appeal.
The analysis reveals that conscientious objection is stigmatising, disparaging, prioritises personal beliefs over evidence-based research and undermines women’s access to abortion. This thesis shows that conscientious objection and the right to health are incompatible, hence the practice must be regulated with the ultimate view of phasing out conscience-based refusals. It concludes that the term conscientious objection is a misnomer and amounts to wilful and dishonourable disobedience by failing to fulfil one’s professional obligations. Abortion care should be impartial, respectful and always put women first.
