FEATURE: Conscientious Objection ************************ 26 February 2016
This newsletter focuses on conscientious objection. It opens with a historical perspective on the evolution of conscientious objection in the UK and its present iteration, presented in a debate organised by the Ob/Gyn section of the University College London Medical Society this month, and ends with a list of questions that could inform a discussion among medical, midwifery and nursing students. It is followed by a brief list of the views of two doctors who do conscientiously object to providing abortion, which were presented in the same event.
This is followed by a report of the views of three Croatian pro-choice doctors who have formed an initiative to call for regulation of conscientious objection, so that those who refuse to do abortions are required to seek employment in church-funded hospitals. The consequences of this, however, may still put pregnant women at risk if they have to receive emergency obstetric care in these hospitals, as a recent report from a Catholic hospital in the USA, which follows, shows. Next, a report from Global Doctors for Choice Ghana describes a stakeholder meeting to discuss research on the extent of conscientious objection in Ghana and its consequences for keeping abortion unsafe. An article on policy in Sweden, Finland and Iceland gives evidence that conscientious objection may be eliminated entirely. Further reading from two websites (ReproHealthLaw, Global Doctors for Choice) and from a range of journals follow these reports. These articles variously cover ethical and legal aspects of the issue and analyse how conscientious objection is addressed in national laws, e.g. in Colombia, Peru/Mexico/Chile, and Brazil.
It is hard not to draw the conclusion that the onus is on health professionals to engage in health care provision which they have no objection to. That surely represents the most equitable form of balance between the rights of health professionals and the rights of patients, as no one is denied what they want to do, as opposed to anyone being forced to do what they don’t want to do.
UNITED KINGDOM
Conscientious objection: the implications for women’s access to abortion and how far it could and should go
Lisa Hallgarten, Chair, Voice for Choice UK
In 1967 when the Abortion Act was passed people’s understanding of abortion and feelings about abortion were shaped not only by ethical questions about the value of fetal life, but also by the stigma attached to a procedure that was largely illegal and hidden; and the fear and horror associated with an operation that was fraught with danger.
Excusing doctors who were unwilling from actively participating in abortion procedures was generally perceived to be a reasonable legislative compromise and has been passively or actively supported by many pro-choice people, who believe that women’s best interests are served by being looked after by people who feel compassionate towards them and are not reluctant to help them.
A lot has changed since 1967 Abortion is legal, and very commonplace (one in three UK women will have one), and abortion procedures have changed radically. Most are carried out very early in pregnancy and with medical abortion there is no need for any clinician to ‘participate in’ or witness the abortion.
However, this changing context, far from reducing the incidence of conscientious objection, has been accompanied by various attempts to extend the scope of conscientious objection far beyond the operating theatre, where it was envisaged in 1967. Within terms set by medical bodies and good practice guidance, GPs can refuse to refer women for abortion. Although they must support access to someone who will, some do not comply even with this requirement; pharmacists have refused to fill prescriptions for emergency hormonal contraception and even regular hormonal contraception on the grounds that they believe (against medical evidence and legal definition) that they are abortifacient.
In a recent case two senior midwives in Scotland argued for the right to refuse supervisory duties for junior midwives involved in care of women accessing abortion for therapeutic reasons. The case - sponsored by an anti-abortion organisation - went all the way to the Supreme Court, where they were thankfully refused this right to conscientiously object. Thankfully, because the implications for abortion care were enormous. The case was a mischievous one, aimed at setting a legal precedent that even staff could refuse to undertake their daily duties if those duties involved even a remote connection with abortion. Observers of this case wondered just how remote a connection to abortion provision would legitimise actions that could effectively shut down an abortion service and prevent women from accessing a necessary, clinically safe and legal procedure. Could hospital administrators opt out of writing contracts, organising rotas or paying staff who participate in abortion care as part of their work? The UK’s Supreme Court ruling against the midwives’ claim helpfully set out, for the record, a clearer definition of what participation in abortion means.
When does the right to opt out become obstruction? At what point does personal conscientious objection – the right to opt out – become obstruction? If the right to opt out can be claimed by supervisors, administrators, and whole groups of staff, when does this become institutional rather than personal? In the UK, a consultant gynaecologist in the National Health Service determines what procedures happen in their department, including whether and what kind of abortions can be provided, with what method and up to what gestation. In the United States with its privatised insurance-based health system, many hospitals are owned and run by the Catholic Church. Everything from after-care for survivors of rape to emergency obstetric care and antenatal screening programmes are affected. Some have opted out of caring for women following sexual assault because they are not prepared to provide emergency contraception. Screening and testing for fetal anomaly may not be offered as part of maternity care, or adverse results withheld to prevent women opting for abortion. In the most heinous cases, doctors have been denied the right to carry out emergency life-saving obstetric procedures because it would hasten the death of the fetus, including those that are non-viable. This kind of institutional objection overrules not only the rights of women who may have no other local hospital they can access, but also the rights of doctors to exercise their own professional judgment whether to prioritise the woman’s life in emergencies, or to conscientiously commit to providing women with reproductive choice as an integral part of their work.
Beyond institutions, we know that whole nations effectively opt out of providing or facilitating abortion. The closest example to the UK is Ireland which whose constitution requires equal protection for the fetus and the pregnant woman. Savita Halappanavar died unnecessarily in 2013 as a result of Irish health professionals, whose care she was under, delaying terminating her pregnancy to wait until the fetus had died (a medical inevitability, given she was only 17 weeks pregnant when she began to miscarry). This is an extreme, but not unique, example of the way in which a collective, religious and/or legislatively mandated objection can ride roughshod over women and override a conscientious commitment to saving their lives and preserving their health.
Conscientious objection means different things in different contexts. It is on a spectrum from opting out, to obstructing, to prohibiting. The impact on women’s lives and well-being is similarly on a spectrum from inconvenience and delay, to stigmatisation and stress, to loss of life.
Where to draw the line: some questions So I would like to end by asking where we think we should draw the line around conscientious objection.
Should a doctor, midwife or nurse be allowed to opt out of direct participation in an abortion procedure?
Should a GP should be able to refuse an abortion referral? Or be allowed to withhold information about alternative ways to access abortion?
How remote from an abortion itself can someone be and still have the right to exercise conscientious objection?
How should we address those that lie or misinform women in order to obstruct their access to abortion, but say they do so from a place of conscience?
Should pharmacists be able to refuse to fulfil a prescription for hormonal contraception including emergency contraception?
Should an institution such as a general hospital be able to opt out of all abortion provision?
Should a country be able to opt out of all abortion provision?
Should doctors be legally protected if they insist it is a matter of conscience to provide abortion in the context of emergency obstetric care? Or as part of a holistic reproductive health service?
Should doctors be legally protected if they refuse to misinform patients by giving them information mandated by law they believe to be false.
Key points made in this debate by doctors supporting conscientious objection
It's terrible how doctors with a conscientious objection are warned off gynaecology and general practice.
Doctors with a conscientious objection add an important perspective and bring special skills to supporting women.
Doctors with a conscientious objection shouldn't have to refer a woman to a doctor who will refer her, or give her information about where to go.
There is no point trying to identify doctors who won't refer, either in practice literature or with posters, because patients never read these.
It is good for women to see an objecting doctor and not be referred because objecting doctors can help them see the humanity of the unborn child with (you know) its little sweet fingers and all that....
The right to conscientiously object should extend to the right to exclusively counsel a woman and explicitly not refer her on.
General Medical Council guidance and laws are irrelevant because the Nazi holocaust was legal, but not moral, slavery too was legal, but never moral ‒ so obeying laws and guidance isn't always a good thing.
Savita Halappanavar did not die because she wasn't allowed an abortion in time, she died because of medical mismanagement, i.e. they should have treated the sepsis sooner.
Women are very vulnerable and might opt for abortion because they don't have the agency to resist pressure.
Women are very capable and have agency and we shouldn't patronise them by thinking they can't find an alternative route to abortion if an objecting doctor refuses to help them.
An objecting doctor has the absolute right, in fact a moral obligation, to sit in judgment on a woman having an abortion and 'compassionately' explain to her why he won't refer her for abortion and why abortion is morally wrong. An objecting doctor should not be obliged to couch their refusal in neutral terms such as 'I don't refer for abortion, but Dr X can help you'.
Doctors that refuse to do abortions should look for a job in church-funded hospitals
Three respected physicians, Dr Dubravko Lepusic, Dr Jasenka Grujic-Koracin and Dr Gorjana Gjuric, whose Initiative for Regulation of Conscientious Objection has raised a public debate, explain their position on demanding that government-funded hospitals shouldn't employ doctors who refuse do to various medical procedures on the grounds of religious beliefs.
Biljana Gaurina/CROPIX
Hospitals, they say, as public institutions funded by public money, must protect the right of a woman to have an abortion, and there should be no compromise on that. There are legal frameworks that guarantee that right. There are also laws that guarantee the right of a physician to conscientiously object, but that does not mean they are allowed not to put patients' needs first.
"Every doctor with a conscientious objection, like those who work in the Holy Spirit Hospital, who are massively refusing to do abortions, should work in a religious hospital that is funded by the Church. That's why we are demanding that religious hospitals become established and that the institutional right of conscientious objection in public hospitals is stopped, including pharmacy and transfusion medicine. It's a physician's obligation to provide services based on science, not religious dogma."
That's how Dr Jasenka Grujic-Koracin announced the launching of an initiative for the registration of religious hospitals, one of a series of projects by the "Initiative of Doctors for the Regulation of Conscientious Objection in Medicine". The Initiative was presented publicly during a roundtable they organised with the Centre for Education, Counselling and Research in Zagreb.
Violation of the rights of patients "If conscientious objection were applied consistently, the system would break down in relation to every aspect of human rights, not just the right to terminate a pregnancy. How far should it be allowed to practise conscientious objection? If we take it to the level of the absurd, it would allow Jehovah's Witnesses to demand the abolition of the Institute for Blood Transfusion, lawyers could demand to be exempted from defending criminals they don't like, and employees of hospitals could boycott everything that has any relation to a woman who has had an abortion - the cleaning staff shouldn't wash the sheets she used and the administrative clerks would not have to write her discharge letter." That's how Dr Jasenka Grujic-Koracin explained the motives behind the need for doctors to join this Initiative.
Dr Lepusic told a story from his own practice: a 17-year-old girl came twice to the hospital with her parents to have an abortion within a couple of months because her GP refused to prescribe her contraception. It is also important to highlight a dark “secret” on abuse of conscientious objection, that is mentioned a lot in gatherings of doctors - that there are doctors who claim the right not to perform abortions during their working hours, but still do so in private clinics.
The doctors who have joined the Initiative demand from the Government and from the Ministry of Health that conscientious objection is regulated more precisely - from defining what are the cases of negative as well as positive conscientious objection, to determine a clearer procedure for objecting, to regulate the accreditation of institutions that have a greater number of people who practise conscientious objection and thus do not carry out all the tasks that are in their job description. They call for a very clear and written procedure of recognition of the individual right to practice CO, similar to that in the military service. Furthermore, they wish to abolish the right some people and to pray in front of hospitals in a way that interferes with regular work of the hospitals, and to form buffer zones which wouldn't allow these people to come near the hospitals.
A conscientious objector register The doctors from the Initiative demand the formation of a register for the health institutions and the Ministry of Health, as well as in the different professions, and measures that would compensate for losses due to conscientious objection. For instance, if a person refuses to do something because of his/her objection, it would be deducted from that person's pay, which would reduce unnecessary costs and leave more money for a "fund" that would be used to pay external associates, Dr Lepusic explains.
The right to practise conscientious objection was brought to Croatian law in 2003. The drama surrounding abortion rights has just brought this to the light, but it is not related exclusively to abortion, but to all reproductive and palliative medicine, as well as blood transfusion and preventive medicine such as the HPV vaccine. Dr Lepusic says: "While we're holding discussions on vaccines and are not one of the 58 countries in the world that have it in their national programme, in Croatia around 100 women per year die from cervical cancer. But the world moves forward - there has been a new vaccine registered in America that covers nine types of HPV virus."
Tags: Croatia, conscientious objection, religious hospitals
USA
Abortion ban linked to dangerous miscarriages at Catholic hospital, report claims
Five women suffered prolonged miscarriages, severe infections and emotional trauma at Mercy Health Partners when staff neglected patients’ health to uphold religious directives against inducing delivery, report reveals. One of the five women described in the report, is suing the US Conference of Catholic Bishops for abortion policy that shows how religious restrictions can interfere with emergency care. Photograph: ACLU
The woman inside the ambulance was miscarrying. That was clear from the foul-smelling fluid leaving her body. As the vehicle wailed toward the hospital, a doctor waiting for her arrival phoned a specialist, who was unequivocal: the baby would die. The woman might follow. Induce labour immediately. But staff at the Mercy Health Partners hospital in Michigan would not induce labour for another 10 hours. Instead, they followed a set of directives written by the US Conference of Catholic Bishops that forbid terminating a pregnancy unless the mother is in grave condition. Doctors decided they would delay until the woman showed signs of sepsis - a life-threatening response to an advanced infection - or the fetal heart stopped on its own. In the end, it was sepsis. When the woman delivered, at 1.41 am, doctors had been watching her temperature climb for more than eight hours. Her infant lived for 65 minutes.
This story is just one example of how a single Catholic hospital risked the health of five different women in a span of 17 months, according to a new report...
Tags: USA, emergency obstetric care, conscientious objection
GHANA
Global Doctors For Choice-Ghana meet over abortion services (and conscientious objection)
Global Doctors for Choice (GDC) Ghana, a network of Physician and Midwife advocates working to promote the freedom of choice for women in reproductive health decisions, has initiated the first quantitative study about conscientious objection to care for abortion services in Ghana, and the first Ghanaian study with conscientious objection as its main focus.
Conscientious objection is a term used to describe the refusal to participate in an activity that an individual considers incompatible with his or her religious, moral, philosophical or ethical beliefs. It is a value-based argument exercised by some health professionals that allows them to refuse to care for women who demand and are entitled to safe abortion services under the Ministry of Health and Ghana Health Service guidelines for comprehensive abortion care.
Speaking at a stakeholder briefing in Bolgatanga, Dr John Koku Awoonor-Williams, GDC-Ghana Country Lead and Regional Director of Health Services for Upper East region, observed that in Ghana, unsafe abortion accounts for a larger proportion of total hospital admissions than for complications of pregnancy and birth, and contributes about 11% of maternal mortality.
GDC-Ghana stakeholders’ meeting
He said in the past three years of GDC-Ghana’s advocacy work on safe abortion care, the network has heard anecdotally that conscientious objection to care is a matter of serious concern, for which reason the network has taken the initiative to do research to establish its prevalence and make necessary proposals for policy development.
GDC-Ghana was launched in November, 2011... According to the Country Lead, in three years the network has reached an estimated 5,831 health workers with its advocacy efforts in a determination for influencing and creating a more tolerable environment for safe abortion services within the health set up. Similarly, the group has worked to promote the introduction of free family planning services under Ghana’s National Health Insurance Scheme. It has also made big strides in building ties with key professional health and training institutions for the promotion of expanded use of health exceptions in Ghana’s abortion laws, and the introduction of safe abortion in the training curriculum of some Midwifery Training Schools and Colleges.
Dr. Awoonor-Williams noted that in addition to conscientious objection to care, stigma against patients and abortion care providers, inadequate numbers of trained practitioners for safe abortion services and difficulties with getting medical schools to adopt revised curriculum on abortion care remain the major obstacles to abortion care services in the country. He therefore entreated the stakeholders to make their various voices heard on the subject to reduce stigma and improve women’s access to safe abortion care.
The GDC-Ghana Country Co-Lead and Medical Director of the Bolgatanga Regional Hospital Dr. Peter Baffoe said although the Standards and Protocols of the Ghana Health Service state clinicians can claim conscientious objection to abortion provision, the same documents bind these clinicians by duty to refer women in need to an accessible qualified provider. He noted that the absence of stipulated sanctions or other control measures for offending individuals and institutions have not helped the policy.
Dr. Baffoe revealed that, given the small numbers of providers in Ghana and particularly in the three northern regions, conscientious objection among abortion providers can increase the risks of women resorting to unsafe abortions and increase preventable complications.
The proposed study will be conducted in the three regions of the north namely Northern, Upper West and East regions. The survey will examine the prevalence of conscientious objection by facility ownership (faith-based, public and private), urban or rural facility location, and by provider type: doctors and midwives. MS. Laura Harris, GDC-New York, a research officer, was happy to note that the study is taking off in Ghana and reiterated the importance of the study in shaping policy and addressing challenges in conscientious objection.
The stakeholder meeting was held to introduce the study topic to the partners and solicit their views on the proposed design and methodology. The meeting was attended by civil society organizations working in the area of maternal and reproductive health, state departments and professional institutions including the Navrongo Health Research Center (NHRC), Department of Social Welfare, the Nurses and Midwives Council and the National Population Council. The group expressed great enthusiasm for this groundbreaking study, and gave helpful input on content and study design.
Abstract Reproductive health care is the only field in medicine where health care professionals are allowed to limit a patient’s access to a legal medical treatment - usually abortion or contraception - by citing their ‘freedom of conscience.’ However, the authors’ position is that ‘conscientious objection’ (CO) in reproductive health care should be called dishonourable disobedience because it violates medical ethics and the right to lawful health care, and should therefore be disallowed. Three countries – Sweden, Finland, and Iceland – do not generally permit health care professionals in the public health care system to refuse to perform a legal medical service for reasons of ‘CO’ when the service is part of their professional duties. The purpose of investigating the laws and experiences of these countries was to show that disallowing ‘CO’ is workable and beneficial. It facilitates good access to reproductive health services because it reduces barriers and delays. Other benefits include the prioritisation of evidence-based medicine, rational arguments, and democratic laws over faith-based refusals. Most notably, disallowing ‘CO’ protects women’s basic human rights, avoiding both discrimination and harms to health.
Finally, holding health care professionals accountable for their professional obligations to patients does not result in negative impacts. Almost all health care professionals and medical students in Sweden, Finland, and Iceland who object to abortion or contraception are able to find work in another field of medicine. The key to successfully disallowing ‘CO’ is a country’s strong prior acceptance of women’s civil rights, including their right to health care.
ReproHealthLaw’s website, managed by Linda Hutjens at the University of Toronto, has a long reading list of articles on conscientious objection, reflecting the important role Bernard Dickens and Rebecca Cook have played in putting this issue on the global agenda:
“Conscientious commitment, the reverse of conscientious objection, inspires health care providers to overcome barriers to delivery of reproductive services to protect and advance women’s health.”
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. Their professional and legal duties are to ensure that patients receive timely services.
from: AMA Journal of Ethics
Unethical protection of conscience: defending the powerful against the weak: professional obligation should override personal values when it comes to providing legal medical services, Bernard M Dickens, 2009;11(9):725-29 http://journalofethics.ama-assn.org/2009/09/oped2-0909.html
In “The Personal is Political, the Professional is Not: Conscientious Objection to Obtaining/Providing/Acting on Genetic Information,” Joel Frader and Charles L Bosk make a compelling argument that the invocation of personal conscience violates medical professional ethics. They believe that provisions like those in new federal legislation and regulations that prohibit discrimination against health care professionals who refuse to provide services or referrals on religious or moral grounds violate medical ethics.
An analysis of law and policy on conscientious objection in Peru, Mexico and Chile shows that it is being used to erode women's rights, especially where it is construed to have no limits, as in Peru. Conscientious objection must be distinguished from politically-motivated attempts to undermine the law; otherwise, the still fragile re-democratisation processes underway in Latin America may be placed at risk.
In Brazil, to have a legal abortion in the case of rape, the woman’s statement that rape has occurred is considered sufficient to guarantee the right to abortion. The aim of this study was to understand the practice and opinions about providing abortion in the case of rape among obstetrician-gynaecologists in Brazil. 81.6% of the physicians required police reports or judicial authorization to guarantee the care requested. In-depth telephone interviews with 50 of these physicians showed that they frequently tested women’s rape claim by making them repeat their story to several health professionals; 43.5% of these claimed conscientious objection when they were uncertain whether the woman was telling the truth. The moral environment of illegal abortion alters the purpose of listening to a patient - from providing care to passing judgement on her.
Lisa Hallgarten, Chair, Voice for Choice UK
