Dissecting Conscientious Objection
What is Conscientious Objection?
Conscientious objection (CO) is the refusal to perform a legal role or responsibility because of personal beliefs. It was first recognised with respect to military service and refers to the position taken by individuals who oppose participation in war. Such objections can take many forms, such as refusing to serve in combat, register for the draft, pay taxes tied to war allocations, or make any type of contribution to a war effort. Many conscientious objectors have been executed, imprisoned or sanctioned when their beliefs led to actions conflicting with their society's legal system or government. In health care, conscientious objection involves practitioners not providing certain treatments to their patients, based on reasons of morality or "conscience."
A person’s sense of right and wrong is guided by the inner values, deeply held beliefs, and moral and ethical principles a person endorses. Abortion may sometimes be perceived as a complex moral issue because of how various social intersectionalities come together to frame our varied perspectives, beliefs and opinions. Some people might be against abortion personally, while some might not like the idea of earning by performing abortions.
Doctor's rights over seeker's?
From a rights-based perspective, it might be claimed that there are two important rights at stake: right of conscience and a right of access to health care without undue burdens. Everybody has two kinds of rights: positive and negative. A positive right is where a person can seek abortion services whenever they wish to. The negative of that right is that no person or institution can create obstacles for the seeker. Conscientious objection is against this negative right because it creates loopholes that can hinder access to abortion services.
Conscientious objection is only legitimate where it does not impose an unreasonable burden on the patient, in terms of delay or distress or health consequences. Thus, to uphold the seeker's right as well as honour conscience, there is one solution that essentially involves the doctor being obliged to refer their patient to another provider. When this condition is met, a professional may declare their CO and decline to provide a service but must inform the patient that abortion is an available service, and refer the patient to another professional who is able to provide the service. This is the position of professional bodies, including the World Medical Association [1] and the International Federation of Gynaecology and Obstetrics [2].
However, there remains no guarantee that the referral would work out. The next doctor could also refuse abortion services, and the seeker would be put through mental and physical distress to find an abortion provider. In most countries, there is a gestational limit beyond which abortion is illegal. For instance, in Texas, the limit is 6 weeks, which can be insufficient time to even discover that one is pregnant. In such cases, the right of conscience poses an additional barrier and can lead to an increase in illegal abortions.
Influence of Objectors
What makes conscientious objection a fragile ground to stand on is the fact that it is rooted in "conscience," which cannot be measured or guaranteed. Not everyone would follow the guidelines of referral, nor would everyone keep their judgements to themselves. Doctors might try to impose their beliefs on the seeker, shame them, and try to persuade them to continue the pregnancy. They might try to deter people from having an abortion, or purposely delay access to abortion (so it becomes legally inaccessible). Some people who already feel guilt, might experience more distress when healthcare workers give moral judgements and place them in a vulnerable situation.
If a person is against abortions in toto, they might feel compelled to stop people from getting abortions, they might even find referring seekers to another doctor against their conscience because they are still enabling the procedure. Where do we draw the line? How do we ensure this doesn't happen? [3]
Further there is a possibility that for some doctors who opt out of providing abortion services, objection is not based on “deeply held moral commitment” but rather on concerns about community or peer acceptance, or financial or reputational penalty. In a study conducted in Australia [4], participants who were not providing medical abortion also expressed concerns about being known as the ‘abortion doctor’ and that provision would dominate their practice and change the nature of their practice or their clientele.
CO as a Legal Right
In terms of what is legally permitted, there is variation globally in the conditions or limits which are placed on CO to abortion. At one end of the spectrum are countries including Sweden, Finland, Bulgaria, Czech Republic and Iceland which do not permit CO. This position is established through a combination of law, policy and practice. Some countries take the ‘moderate position’ allowing CO but imposing a range of conditions designed to reduce the impact of the objection on women’s access to services. Other countries, like Poland, are closer to the “conscience absolutism” end of the spectrum, meaning doctors neither have an obligation to provide care that conflicts with their conscience nor any obligation to facilitate access to care by another provider. [4]
Australia: In Victoria, Australia, the law regulating abortion was reformed in 2008, and a clause (‘Section 8’) was introduced requiring doctors with a conscientious objection to abortion to refer women to another provider. In a study [4] conducted in 2019, it was found that the majority of participants described Section 8 as a mechanism to restrict women’s right to abortion, rather than a mechanism to protect doctors’ rights. Use or misuse of conscientious objection by Government telephone staff, pharmacists, institutions, and political groups was also reported.
England - In 1967, the UK Parliament passed the Abortion Act, establishing legal exceptions to the Offenses Against the Person Act of 1861 and to the Scots common law offence of abortion. Section 4 of the Abortion Act states [5] that “no person shall be under any duty, whether by contract or by any statutory or other legal requirement to participate in any treatment authorized by this Act to which he has a conscientious objection. There is no formal system for CO declaration.
Italy - Article 9 of the law legalises and regulates the practice of conscientious objection, which is permitted unless the immediate termination of pregnancy is essential in order to save the pregnant woman’s life. While the law requires objectors to submit a declaration of objection to the provincial medical officer, interviewees consistently explained that objectors usually notify just their medical supervisors. Many hospitals are staffed only by objectors and thus offer no functional abortion services. [3]
In India, conscientious objection is not recognised legally. A doctor is expected to provide the services required. However, there is no law that ensures that either. Healthcare workers often carry their personal moral beliefs into their profession and are not questioned when they refuse to provide abortions.
Consequences of CO
Abortion is an essential part of women's healthcare that 1 in 3 women will need in their lifetime. Considering the implications of CO in India, it can prove to be a setback to the progress we have made and stand as a major barrier to equal access to safe abortion services. Given the skewed doctor-patient ratio in our country, conscientious objection would further decrease the number of abortion providers. In rural settings, specialists are not available and geographical barriers already hamper accessibility. A lack of infrastructure and social stigma multiply up to an extremely vulnerable situation for people in these areas. CO as a legal right may end up landing a further blow.
There also lies a possibility of it being misused to refuse abortions for reasons other than conscience. During the Holocaust, Hitler and the Nazis claimed to be completely anti-abortion, but in truth the Nazis believed that a woman's body belonged to the State, and the State would decide what to do with it. Women who were considered "pure Aryans" were refused abortions and encouraged to bear more children, while abortions were forced on women of other races. Conscientious objection gives scope to healthcare workers to discriminate against people from a certain religion, race or caste. They might refuse abortion services to some and provide it to others. The right to refuse can be misused by even non-objectors.
Is it possible for institutions to have a conscientious objection? How can hospitals as a whole have any conscience at all? In Poland, it was found [6] that “in certain areas, there were no abortion providers at all”, and that “there had been attempts to create abortion-free zones”. In addition, CO was not only affecting access to abortion, but also to emergency contraceptive pills. Even pharmacists had started to invoke the CO clause to refuse the sale of emergency contraceptives, even though doing that was illegal.
While we talk about the right to conscience for doctors, we must acknowledge that some people have no opportunities to exercise either conscience or autonomy in decisions about their reproductive health. They might be forced to abort a pregnancy against their conscience and will due to social stigma, financial issues, lack of child care resources and lack of disabled-friendly infrastructure.
Conscientious objection can go beyond abortions. There might be healthcareworkers who object to procedures such as emergency contraception for rape victims, in vitro fertilization for infertile couples, hormone replacement therapy, transition surgery, organ transplantation, blood transfusion, PLHIV, patients' requests that painful and futile treatments be withheld or withdrawn, and therapies developed with the use of foetal tissue or embryonic stem cells.
Conscientious provision
Abortion opponents usually talk about their position in terms of “conscientious objection,” which implies that people are objecting because of a “good conscience.” That translates to an assumption that providing abortion care is morally subject. Everybody deserves access to quality, safe care. Why is it objectionable to want to provide that—to take pride in being able to care for people that few are willing or able to help? [7]
"The term 'conscientious objection' implies that 'conscientious objectors' are the only ones acting in conscience. This distortion is mediated by stigma. This fails to recognise that abortion providers are driven to act with their ‘conscience’ to safeguard women/girls’ rights… because they believe that they are providing good and ethical care."
– Dr Laura Gil, member of FIGO's Committee on Safe Abortion
Conclusion
Should professionals like doctors, police, and armed forces be allowed to bring with them their personal beliefs into their area of work, particularly when theirs is a secular professional space governed by civil and criminal laws of the country?
Can doctors with conscientious objections follow a rights’based approach to providing abortions?
Won’t these professional individuals be invariably complicit in imposing their personal values and beliefs on others, further influencing their decisions?
There is no specific correct answer to ethical dilemmas, therefore we need to ponder on these questions to form individual opinions. Perhaps, the need of the hour is confronting young individuals and young health care providers to probe into why these conscientious objections come into being - and consequently work with them to confront these beliefs to establish a holistic understanding of upholding the sexual and reproductive health, rights and justice of people.
Resources:
1. https://www.wma.net/policies-post/wma-declaration-on-therapeutic-abortion/
2. https://www.figo.org/sites/default/files/uploads/wg-publications/ethics/English%20Ethical%20Issues%20in%20Obstetrics%20and%20Gynecology.p
3. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1360408/
4. https://bmcmedethics.biomedcentral.com/articles/10.1186/s12910-019-0346-1#ref-CR8
5. https://www.legislation.gov.uk/ukpga/1967/87/section/4
6. https://www.figo.org/news/conscientious-objection-conscientiously-committed-how-obgyns-can-advocate-bodily-autonomy
7. https://www.bu.edu/sph/news/articles/2018/the-case-for-conscientious-provision/