On conscientious objection to abortion: Questioning mandatory referral as compromise in the international human rights framework

Introduction

There are significant barriers to accessing abortion services, even where abortion has been legalized. One of these barriers is conscientious objection to the provision of abortion by healthcare professionals, which can obstruct access and, in some contexts, seriously limit the availability of abortion services. ¹ This is a complex issue to address, and there is an expanse of literature considering the appropriate means of protecting freedom of conscience while ensuring access to abortion services at the same time. This article will address a gap in this literature, in terms of how the international human rights framework responds to conscientious objection. International human rights actors rely on mandatory referral mechanisms, where objecting healthcare professionals must formally refer a pregnant person to a non-objecting professional for abortion care. ² This purported compromise position is intended to uphold human rights standards on abortion while offering protection for healthcare professionals opposed to providing those services. ³ In practice, however, mandatory referral mechanisms are limited in efficacy due to the reluctance of anti-abortion healthcare professionals to refer patients and the broader issues with conscientious objection.

In this article, I will therefore argue that reliance on mandatory referral mechanisms by international human rights bodies strikes an inadequate balance between freedom of conscience and access to abortion. The first section will set out international human rights standards on abortion and the approach of human rights bodies to conscientious objection in this context. In the second section, I will highlight why mandatory referral mechanisms will often fail to ensure access to abortion. I argue that mandatory referral cannot be taken to be compromise position by either side, as objecting healthcare professionals are opposed to any involvement in the abortion process and may avoid complying with such requirements. I then highlight the further issues with widespread conscientious objection, considering the contexts of Poland and Italy where this is a particular issue, and the broader misuse of conscientious objection provisions which render mandatory referral mechanisms wholly ineffective. The third section identifies the spectrum of harms resulting from conscientious objection to abortion and considers proposals from other scholars as to how these harms might be addressed or mitigated. Finally, in the last section, I will make suggestions as to how the international human rights framework should appropriately respond to the issues associated with permitting conscientious objection. I argue that human rights bodies must strike a contextual balance, recognizing the problems with widespread conscientious objection in some countries and how this has a particularly severe impact where abortion is legally restricted. I conclude that it is necessary to place obligations on states to tackle gender-based stereotypes around motherhood and anti-abortion attitudes if the harms resulting from conscientious objection are to be fully addressed.

The international human rights approach to abortion and conscientious objection

There is no legally recognized human right to abortion in the international system, but UN treaty bodies, such as the Human Rights Committee (HRC), Committee on the Elimination of Discrimination against Women (CEDAW), and Committee on Economic, Social, and Cultural Rights (CESCR), require that states legalize abortion in some circumstances. These bodies have recognized that restrictions on abortion can violate a number of other rights, so that states have an obligation to provide abortion services where there is a risk to the life or health of the pregnant person, where the pregnancy resulted from rape, and for fatal foetal impairments. ⁴ More recently, these human rights bodies have indicated that states must also decriminalize abortion to prevent unsafe abortions and abortion-related mortality. ⁵ Beyond this, the comments of CESCR and CEDAW indicate a procedural right to access abortion services on the grounds already legalized by the state. ⁶ Barriers to the timely access of reproductive health services must be addressed by states, and such barriers include conscientious objection as pregnant people must seek abortion services from a non-objecting healthcare professional after a conscientious refusal, causing delays. ⁷

Conscientious objection is afforded protection under the right to freedom of thought, conscience, and religion contained in Article 18 of the International Covenant on Civil and Political Rights. ⁸ Historically, conscientious objection referred to the moral objection to military service, and in particular, refusals to participate in compulsory military service. Conscience-based exemptions are now also used by healthcare professionals, often in relation to sexual and reproductive health services, such as abortion, contraception, and assisted reproductive technologies. While protection for conscientious objection under Article 18 has not been explicitly extended to the medical sphere, international human rights bodies have not indicated that conscientious objection, where appropriately regulated, violates human rights standards on sexual and reproductive health.

Instead, the approach of these bodies suggests that conscientious objection to sexual and reproductive health services is permissible, provided states strike a balance between allowing conscientious objection and ensuring the availability of those services. The HRC, CESCR, and CEDAW have all expressed concerns over the use of conscientious objection in states, such as Colombia, Poland, and Romania, where conscientious objection provisions are relied on excessively or are unregulated to the point of obstructing access to abortion services. ⁹ However, in response to this issue, none of these bodies have recommended that balancing conscientious objection with access to abortion services may require that conscientious objection be restricted. Rather, they recommend that states implement mechanisms for mandatory referrals and ensure that there are effective procedures in place for contesting refusals. ¹⁰ In its 2015 Concluding Observations on Slovakia, for example, CEDAW explicitly noted that such a referral mechanism should be implemented in a manner that also respects individual conscientious objectors. ¹¹ The Special Rapporteur on the right to the highest attainable standard of physical and mental health, Anand Grover, expanded on conscientious objection in his 2011 report on sexual and reproductive health, recommending that conscience-based exemptions be ‘well-defined in scope and well-regulated in use’. ¹² Grover also relied upon referrals as a method of regulation, recommending that states ensure the availability of alternative services where a doctor objects. ¹³

The current international human rights approach to conscientious objection is an attempt to take a compromise position, where mandatory referrals are taken as a balance between sexual and reproductive rights, and the right to freedom of conscience. By requiring the objecting healthcare professional to refer the patient for an abortion, their right not to participate in an abortion procedure is upheld, while also ensuring that the pregnant person is still able to obtain an abortion. However, in practice, mandatory referral mechanisms are unlikely to achieve this compromise in many contexts. The effectiveness of this approach rests on the assumption that objecting healthcare professionals will not also object to referral and will therefore comply with referral requirements. Furthermore, mandatory referral requirements cannot address the impact of widespread conscientious objection, as this requires regulation beyond that aimed at individual healthcare professionals.

Where mandatory referral is ineffective

For healthcare professionals who strongly object to abortion, referral amounts to involvement, albeit indirectly, in an abortion going ahead. Fovargue and Neal highlight that objecting healthcare professionals view referral requirements as entailing complicity in the objected practice. ¹⁴ For an anti-abortion healthcare professional, any involvement in the abortion procedure will be seen as unacceptable. McLeod therefore argues that for objecting healthcare professionals, who believe that the foetus has a right to life and that abortion is murder, referral requirements can never amount to a true compromise. ¹⁵ That mandatory referral is not an acceptable compromise from the perspective of conscientious objectors is a concern that has also been raised in relation to the international human rights approach. Fischer argues that the recommendations to implement mandatory referral requirements afford ‘more weight to the woman’s right to health than to the healthcare provider’s right to freedom of conscience’. ¹⁶ From this perspective, referral requirements infringe the right to freedom of conscience.

For those concerned with ensuring access to abortion services, referral requirements may appear to be an attractive means of regulating conscientious objection. Feminist scholars have reluctantly accepted that conscientious objection should be afforded some (limited) protection, on the basis that although conscience-based exemptions will inevitably have some impact on abortion service delivery, this can be minimized through referral requirements. ¹⁷ Referral requirements are a compromise from this position, through the accommodating of the right to conscientiously object despite the potential impact on access to abortion. ¹⁸ In viewing referral in this way, its proponents reject the argument that referral amounts to involvement. For example, Dickens argues that referral gives the pregnant person the opportunity to choose from a range of options concerning their pregnancy, of which abortion is merely one of; referral does not always result in an abortion. ¹⁹ In relation to a decision by the Colombian Constitutional Court on the accommodation of conscientious objection to abortion, Cook, Arango Olaya, and Dickens highlight that the duty on healthcare professional to refer a pregnant person in good faith cannot be legally denied on the grounds of complicity with abortion. ²⁰ However, taking referral to be an adequate compromise dismisses the strength of anti-abortion values, and fails to account for healthcare professionals who do object to referral and will therefore evade or refuse to follow mandatory referral requirements.

Prior to 2015, conscientiously objecting healthcare professionals in Poland had an obligation to refer pregnant people seeking an abortion. ²¹ However, this requirement was largely unenforced. In R.R. v Poland, a pregnant woman and her doctors suspected a severe foetal impairment, but the doctors refused to provide prenatal diagnosis until the gestational time limit for a legal abortion on the grounds of foetal impairment had passed. ²² In P and S v Poland, a 14-year-old who had become pregnant as a result of rape was hindered from accessing legal abortion services by doctors who were opposed to abortion. ²³ In both cases, the European Court of Human Rights (ECtHR) criticized the lack of procedural mechanisms in place to ensure that conscientious objection did not interfere with the patient’s interest, which enabled doctors to obstruct access to prenatal diagnostic and legal abortion services. ²⁴ The European Court, in P and S, highlighted the State’s failure to enforce its own laws around the regulation of conscientious objection. ²⁵ In the context of Norway, a study of healthcare professionals refusing to refer patients for abortion indicated a spectrum of co-operation. ²⁶ Some doctors were willing to engage in a more informal process of referral, by passing the patient on to a colleague who would then refer them, whereas others were not transparent about their objection. ²⁷

The latter experience supports concerns that pregnant people may mistake their doctor’s refusal as an indicator that they are not eligible for an abortion where there is a lack of transparency around conscientious objection. ²⁸ Tysiąc v Poland demonstrates how Polish doctors also evaded referral requirements by refusing to provide abortion services without invoking the conscientious objection provision. ²⁹ The applicant, Alicja Tysiąc, had a visual impairment which doctors concluded would likely worsen, possibly leaving her blind, following the delivery of the foetus she was carrying. ³⁰ They recommended sterilization after the birth, due to the risk that pregnancy would have on her eyesight, but refused to certify for an abortion in relation to her present pregnancy, despite her condition meeting the legal criteria for therapeutic abortion. ³¹ The doctors did not invoke the conscientious objection provision in making such a refusal, thus avoiding the obligation to refer Alicja Tysiąc to a doctor willing to provide an abortion. Instances of evading referral requirements may not always be as extreme as in this case, but doctors can nonetheless take advantage of the space for uncertainty around conscientious objection. In Saxby v Morgan, it was claimed that a Scottish doctor had told a pregnant woman that at 18- to 19-week gestation she was ‘too far gone’ for an abortion, despite falling within the gestational time limit set out in the Abortion Act 1967. ³²

Thus, referral requirements do not represent, in practice, an adequate compromise to objecting healthcare professionals or from the perspective of ensuring access to abortion services. Objecting healthcare professionals who view referral for abortion as participation in the objected practice are likely to circumvent these requirements, and they are difficult to enforce – particularly in contexts where refusal to refer is a widespread issue. As a result, referral requirements do not protect a pregnant person’s ability to access abortion services. The reliance on mandatory referral mechanisms at the international human rights level therefore fails to strike an adequate compromise between freedom of conscience and access to abortion.

Preventing the harms associated with conscientious objection

Mandatory referrals are taken to be a compromise position by international human rights bodies, but as I have argued thus far, this cannot be viewed as an adequate compromise from either side, and mandatory referral mechanisms are wholly ineffective in addressing the broader issues with conscientious objection. The rights to freedom of conscience and access to abortion must be appropriately balanced; protection for, or restrictions on, conscientious objection must be proportionate to the potential harms caused for each side. Restricting conscientious objection in the healthcare sphere would cause psychological harm to those required to act against their moral values. However, where it is widespread or inadequately regulated, conscientious objection can significantly harm people requiring abortion services.

The most serious harm caused by conscientious objection is the total prevention of access to abortion. Where conscientious objection is widespread or misused in the ways explored above, pregnant people may be left without any access to legal abortion services. In Italy, the fact that some regions have no healthcare professionals willing to provide abortion services means that pregnant people must travel to another region to find a non-objecting doctor, a disparity which adds an additional obstacle for socio-economically disadvantaged people. ⁶⁴ Having to travel to access abortion services can have a number of consequences, the worst of them felt by people unable to travel due to the geographical distance and financial cost. In a study of the impacts of travelling for abortion in two US states, Jerman et al. found three key outcomes: abortions obtained at a later gestational age, negative mental health outcomes, and attempts by pregnant people to end their own pregnancies through medication, home remedies, or physical trauma. ⁶⁵ If pregnant people are unable to access alternative means of abortion, such as through travelling or obtaining abortion medication online, they may have no choice but to continue an unwanted pregnancy or engage in unsafe abortion practices, risking their health and criminalization where abortion is an offence. ⁶⁶

Furthermore, in Poland, the near-total exclusion of abortion from public hospitals means that people unable to pay for private healthcare may be left without access to abortion even where it is necessary to prevent risk to the pregnant person’s life. ⁶⁷ Thus, in Tysiąc, the outcome of being refused an abortion was that the applicant was left almost blind after giving birth. ⁶⁸ There have also been cases in Italy where doctors have conscientiously objected to providing abortions in emergency situations, resulting in the death of a pregnant women from sepsis in 2016. ⁶⁹ In contexts where conscientious objection acts as a significant barrier to access to abortion services, this has serious consequences for the bodily autonomy and health of pregnant people, in violation of the international human rights standards requiring states to guarantee the accessibility of legal abortion services and prevent unsafe abortion.

However, conscientious objection can perpetuate harms even where a pregnant person is subsequently able to access legal abortion services. Fiala and Arthur identify a continuum of harm associated with conscientious objection, which includes the harm caused by delays and the stigmatizing of those seeking abortion services. ⁷⁰ Delays can make the process of obtaining an abortion more stressful and burdensome and can create additional difficulties in relation to gestational time limits for abortion. Delays can cause or exacerbate psychological distress around an unwanted pregnancy, and people in situations of vulnerability – such as adolescents and people facing intimate partner violence – may find it difficult to overcome the additional obstacles created by conscientious objection. ⁷¹ Furthermore, delays will be particularly psychologically distressing to people who have become pregnant as a result of rape or those carrying a foetus with a fatal impairment. The ECtHR and HRC have found in previous cases that prohibitions on or obstacles to accessing abortion in these situations amounted to cruel, inhuman, and degrading treatment. ⁷² Even where delays or barriers to access do not cause this level of harm, they may still infringe human rights requirements that states guarantee timely access to services. Delays to accessing abortion services as a result of conscientious objection can therefore cause harm, in varying degrees of severity, amounting to a violation of human rights standards.

Furthermore, as conscientious objection in the healthcare sphere is largely practised in relation to reproductive health services, such as abortion and contraception, these refusals can perpetuate gender stereotypes around motherhood and pregnancy. As Ngwena identifies, conscientious objection can become a ‘Trojan horse for popular patriarchal and religious prejudices that deny women’s reproductive agency’. ⁷³ This is particularly the case with selective objections based upon outward-facing reasons, as discussed above, such as the pregnant person’s contraceptive use or lifestyle choices. Conscientious objection to abortion is premised on the belief that abortion – either generally or in a specific instance – is wrong, which can reinforce patriarchal beliefs that abortion is selfish and a deviation from women’s biological duty to become mothers. ⁷⁴ Adenitire argues, in relation to conscientious objection by commercial service-providers and sexual orientation discrimination, that the denial of services (such as providing flowers for a gay wedding) represents an unjustifiable dignitary harm by treating lesbian, gay, and bisexual people as second-class citizens. ⁷⁵ Dignitary harm is not merely offence or humiliation, but also differential treatment in the context of historically discriminatory laws and continuing homophobia in the present day, which represents a social harm. ⁷⁶ Inadequately regulated conscientious objection to abortion can also amount to an unjustifiable dignitary harm against people capable of becoming pregnant in the context of the historical marginalization of women as a gendered class.

In the context of conscientious objection to emergency contraception, McLeod therefore argues that the harm caused is never just mere inconvenience because of how objection to reproductive healthcare is interlinked with these gendered norms. ⁷⁷ Although not all instances of conscientious objection by individual healthcare professionals will be explicitly based on these gendered norms, conscientious objection to abortion, when considered at a structural rather than individual level, perpetuates gender-based harm as restrictions on abortion have historically been tied to these gendered stereotypes. CEDAW requires states to

modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. ⁷⁸

This obligation on states to address gender stereotypes has been explicitly extended to norms that place the protection of the foetus above that of the pregnant person. ⁷⁹ Thus, insofar as conscientious objection to abortion perpetuates gender stereotypes around pregnancy, states have an obligation to respond to this harm.

How the international human rights framework should respond to conscientious objection

At the international human rights level, mandatory referral mechanisms do not operate as a workable compromise due to the complex and contextual nature of conscientious objection to abortion worldwide, which often obstructs access to abortion and perpetuates additional harms against pregnant people. Zampas highlights that while there have been growing human rights standards on ensuring access to reproductive health services and the removal of barriers, including the unfettered use of conscientious objection, these standards do not cover all situations in which conscientious objection places human rights in jeopardy. ¹⁰⁰ Zampas and Andión-Ibañez thus argue that more guidance on the regulation of conscientious objection is needed from international and regional human rights bodies. ¹⁰¹ The remainder of this article will set out how the international human rights framework should offer guidance on conscientious objection.

The ECtHR appears to limit the right to conscientious objection in relation to reproductive healthcare. In Pichon and Sajous v France, the owners of a pharmacy, who had been fined after refusing to provide contraceptives to three women, argued that this penalty was an interference with the Article 9 right to freedom of religion contained in the European Convention on Human Rights. ¹⁰² The ECtHR declared the application to be inadmissible as the penalty did not interference with the rights guaranteed by Article 9, and was thus manifestly ill-founded. ¹⁰³ In 2020, the ECtHR issued decisions in two cases concerning Swedish midwives who had been refused employment in women’s clinics after informing their prospective employers of their objection to provide abortions. ¹⁰⁴ The ECtHR again rejected the applications on the basis that they were manifestly ill-founded, noting that there is no guaranteed right to occupy a post in the civil service. ¹⁰⁵ Domenici has expressed concerns over the ECtHR accepting the de facto exclusion of Catholics from the midwifery profession in these two cases without properly assessing the proportionality of this exclusion. ¹⁰⁶

However, the ECtHR’s decisions indicating that Article 9 does not contain a right to conscientiously object to providing reproductive healthcare are in line with its approach to abortion, which is left within the margin of appreciation of each Member State. In the three Polish cases discussed above, violations of Convention rights were found because the applicants were all denied access to abortion services in circumstances where they met the criteria for a legal abortion in domestic law. ¹⁰⁷ In A, B, and C v Ireland, the ECtHR did not accept that the Article 8 right to private life conferred a right to abortion and a violation was found only in relation to one of the three applicants, on the basis that they were legally entitled to a therapeutic abortion in Ireland. ¹⁰⁸ The ECtHR thus takes a procedural approach to abortion, leaving an assessment of the competing rights or values within the abortion context to individual Member States. ¹⁰⁹ There is no right to conscientious objection just as there is no right to abortion, with the ECtHR accepting in the Swedish cases that protecting access to abortion is a legitimate aim in restricting conscientious objection and in A, B, and C that the State’s interest in protecting the life of the foetus is a legitimate aim in restricting access to abortion. ¹¹⁰ As Campbell identifies, the ECtHR is unlikely to make a definitive statement on conscientious objection and the above cases should not be interpreted as such. ¹¹¹ A deferential approach is not uncommon for international bodies; the World Health Organization contains a qualifier in its list of essential medicines to note that mifepristone and misoprostol should be provided where it is culturally acceptable. ¹¹² However, in applying the margin of appreciation, the ECtHR is reluctant to set any concrete standards on abortion provision.

While there is therefore a limited opportunity for expansion on the balancing between conscientious objection and access to abortion at the European level, it is both possible and important for international human rights bodies to offer further guidance. Although there is also no right to abortion recognized in the international human rights framework, legal restrictions on abortion and barriers to access violate a number of rights in certain circumstances. Thus, there is more scope for international human rights bodies to require states to properly regulate conscientious objection in support of these existing standards on abortion. The current reliance on mandatory referral mechanisms is ineffective, and where conscientious objection obstructs access to abortion, this approach undermines these existing standards.

However, this approach should not be replaced with a similarly standardized recommendation. The international human rights approach must account for the socio-economic and political pressures of different contexts, primarily in relation to the worldwide variation in prohibitions on and socio-cultural attitudes towards abortion, the current regulation and use of conscientious objection, and broader issues with reproductive healthcare delivery. Harris et al. argue that conscientious objection policies seldom take into account the context of reproductive healthcare delivery and how this leads to conscientious objection acting as a barrier to abortion access. ¹¹³ Reliance on generalized measures, such as mandatory referral mechanisms, will fail to adequately respond to these different contexts. The international human rights framework must therefore adopt recommendations aimed at achieving this contextual balance.

First, this requires recognition of the continuum of harms caused by conscientious objection. As highlighted above, conscientious objection obstructs access to abortion services which can delay an abortion, force pregnant people to travel for an abortion or access clandestine abortion services, or where this is not possible, continue an unwanted pregnancy to term. At worst, healthcare professionals conscientiously objecting to therapeutic abortions can have potentially devastating consequences. The European Committee of Social Rights, the regional human rights body monitoring the implementation of the European Social Charter, has found in relation to Italy that widespread conscientious objection amounts to a violation of the right to health in conjunction with the right to non-discrimination. ¹¹⁴ Even where the pregnant person is eventually able to access abortion services, the initial refusal is nevertheless stigmatizing and can perpetuate harmful gender-based stereotypes around pregnancy. International human rights bodies should highlight how conscientious objection can violate various human rights, including gender-based rights, and has the potential to undermine existing human rights standards on abortion.

To minimize the harms caused by conscientious objection, international human rights bodies should place clearer obligations on states to implement a comprehensive regulatory response to ensure that access to abortion services is not obstructed. As the adoption of a blanket policy, such as mandatory referral, cannot address the problems associated with conscientious objection in different contexts, the specific details of this response should be left to individual states. Individual states are better placed to determine a feasible and effective measure of addressing conscientious objection, guided by the obligations placed on them regarding access to abortion. However, in states where the use of conscientious objection is widespread or extreme, and therefore creates a significant barrier to accessing abortion services, human rights standards must require states to further restrict the use of conscientious objection by healthcare professionals. In addition, Ó Néill argues that the breadth of defensible conscientious objection is connected to the breadth of abortion provision, so greater restrictions on conscientious objection can be justified where there are greater restrictions on abortion provision. ¹¹⁵ Thus, where states have failed to meet existing human rights standards on ensuring access to abortion, international human rights bodies should also require those states to further restrict conscientious objection than in states with more progressive abortion regimes.

The regulation of conscientious objection will not address the gender-based harms resulting from refusals, as these issues will likely be present wherever conscientious objection to abortion is practised. The key issue is that healthcare professionals hold a moral objection to healthcare services that are necessary for reproductive autonomy and gender equality, which requires tackling abortion stigma in healthcare settings as well as comprehensive abortion training emphasizing why access to abortion is morally important. ¹¹⁶ As conscientious objection poses less of a problem for abortion service delivery where only a small minority of healthcare professionals object to providing abortions, steps must be taken to change stereotypical socio-cultural attitudes towards women’s reproductive roles and lessen the impact of anti-abortion views. International human rights bodies, particularly CEDAW, could address this as an issue of non-discrimination and gender equality. As States are already required by CEDAW to modify socio-cultural stereotypes, this obligation could be expanded to cover anti-abortion attitudes, to fully address the gender-based harm caused by conscientious objection. Conscientious objection must be understood not only as a procedural barrier to accessing abortion services but also as an issue of gender inequality, which states must actively take steps to challenge. It is only through recognizing conscientious objection as an issue of gender inequality that the international human rights framework can fully uphold its existing standards on access to abortion.

Conclusion

The reliance on referral mechanisms by international human rights bodies fails to strike an adequate balance between freedom of conscience and ensuring access to abortion, thus undermining existing human rights standards on abortion. The insufficient regulation of conscientious objection has the potential to significantly obstruct access to abortion services, particularly where this objection is widespread and healthcare services cannot be organized in a way which minimizes its impact. The spectrum of harm resulting from conscientious objection to abortion must be addressed through a range of measures, depending on the specific context of individual states. In this article, I have argued that international human rights bodies should place clear obligations on states to regulate conscientious objection to guarantee access to abortion. While the specific details of this regulation should be left to individual states, it would be appropriate for human rights bodies to require the restrictive regulation of conscientious objection in states where abortion is largely restricted. Finally, fully addressing the harms of conscientious objection requires acknowledgement of the gender stereotypes reinforced by objecting healthcare professionals. States must therefore tackle these stereotypes, and anti-abortion values, which result in and are perpetuated by widespread conscientious objection.