HR expert: Conscientious objection may not hinder lawful abortions

Many thanks to Christina Zampas, one of fifty international experts and policymakers who recently convened in Montevideo, Uruguay, to share findings on the legal status and harms of conscientious objection to lawful abortions.   The refusal to provide services on grounds of conscience hinders lawful abortion in countries with both liberal and restrictive laws.  The practice also stigmatizes basic reproductive health services and in some cases pushes women to carry risky or unintended pregnancies to term, or to seek illegal or unsafe alternatives, which may have dire consequences, including death.

United Nations and regional human rights bodies have recognized the harmful effects of conscientious objection on the health and human rights of women.  They have articulated state obligations under the rights to health, to privacy and to non-discrimination, to ensure that women can access reproductive health services that they are lawfully entitled to receive.  For decades, human rights bodies have recommended that to comply with human rights obligations, states should decriminalize abortion, liberalize restrictive laws and remove barriers that hinder access to safe abortion.[1] “[I]n cases where abortion procedures may lawfully be performed, all obstacles to obtaining them should be removed,” including the unregulated practice of refusing to provide services based on conscience. [2]

UN treaty bodies have expressed concern about the harmful impact of the exercise of conscientious objection and have repeatedly urged those states that permit the practice to adequately regulate it to ensure that it does not limit women’s access to abortion services. [3]  The UN Special Rapporteur on Health, for example, has recognized that “conscientious objection laws . . . make safe abortions and post-abortion care unavailable, especially to poor, displaced and young women. Such restrictive regimes, which are not replicated in other areas of sexual and reproductive health care, serve to reinforce the stigma that abortion is an objectionable practice.” [4]   He has also recommended that states “[e]nsure that conscientious objection exemptions are well-defined in scope and well-regulated in use and that referrals and alternative services are available” and urged states to ensure that conscientious objection cannot be invoked in emergency situations. [5]

Human rights bodies have called on states to prohibit the improper use of conscientious objection by medical professionals.  And while human rights law does not require states to allow conscientious refusals to abortion, these human rights bodies have noted that where states do allow for it, they must regulate it, to ensure that it does not deny or hinder women access to lawful abortion.  They have explicitly specified that the relevant regulatory framework must ensure an obligation on healthcare providers to refer women to alternative health providers [6] and must not allow institutional refusals of care. [7]   The CESCR Committee, which monitors state compliance with the International Covenant on Civil and Political Rights,  has specifically recommended that states should also ensure that “adequate number of health-care providers willing and able to provide such services should be available at all times in both public and private facilities and within reasonable geographical reach.” [8]

This first International Convening on Conscientious Objection and Abortion, held August 1-3, 2017 in Montevideo, Uruguay, was sponsored by Mujer y Salud Urugay (MYSU) and the International Women’s Health Coalition (IWHC).  Participants agreed to further legal, ethical, health, and policy objectives that can mitigate the damaging effects of conscientious objection and reduce the immense burden on women who seek a legal, professional service that must be rendered without prejudice.
About the International Convening on Conscientious Objection and Abortion
Report on the meeting, and its declarations in English and Spanish
Report by South African delegation.

Conscientious Objection – List of resources from members of the International Reproductive and Sexual Health Law Program are online here.

Conscientious Objection to Abortion and Accommodating Women’s Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective, by Charles G Ngwena,  Journal of African Law 58.2 (October 2014) 183 – 209  now online here.

Christina Zampas is a Reproductive and Sexual Health Law Fellow at the University of Toronto’s Faculty of Law.  Short bio

ENDNOTES:
[1]  See, e.g., Human Rights Committee, Concluding Observations: Jamaica, para. 14, U.N. Doc. CCPR/C/JAM/CO/3 (2011) (urging the state to “amend its abortion laws to help women avoid unwanted pregnancies and not to resort to illegal abortions that could put their lives at risk. The State party should take concrete measures in this regard, including a review of its laws in line with the Covenant.”); Human Rights Committee, Concluding Observations: Mali, para. 14, U.N. Doc. CCPR/CO/77/MLI (2003); Human Rights Committee, Concluding Observations: Djibouti, para. 9, U.N. Doc. CCPR/C/DJI/CO/1 (2013); Human Rights Committee, Concluding Observations: Ireland, para. 13, U.N. Doc. CCPR/C/IRL/CO/3 (2008). See also Human Rights Committee, General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), (68th Sess., 2000), para. 10, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000).

[2]  Human Rights Committee, Concluding Observations: Argentina, para. 14, U.N. Doc. CCPR/CO/70/ARG (2000); see also CESCR, Concluding Observations: Argentina, para. 22, U.N. Doc. E/C.12/ARG/CO/3 (2011); Poland, para. 28, U.N. Doc. E/C.12/POL/CO/5 (2009); CEDAW, Concluding Observations: India, para. 41, U.N. Doc. CEDAW/C/IND/CO/3 (2007); Poland, para. 25, U.N. Doc. CEDAW/C/POL/CO/6 (2007).

[3]  ESCR Committee, Concluding Observations: Poland, para. 28, U.N. Doc. E/C.12/POL/CO/5 (2009); CEDAW Committee, Concluding Observations: Poland, para. 25, U.N. Doc. CEDAW/C/POL/CO/6 (2007); Slovakia, para. 29, U.N. Doc. CEDAW/C/SVK/CO/4 (2008); Human Rights Committee, Concluding Observations: Poland, para. 12, U.N. Doc. CCPR/C/POL/CO/6 (2010).

[4] Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Interim rep. of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, transmitted by Note of the Secretary-General, para. 24, U.N. Doc. A/66/254 (Aug. 3, 2011), para. 24.

[5] Id. Para 65(m), and Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover – Mission to Poland, U.N. Doc. A/HRC/14/20/Add.3 (2010). paras. 50, and 85(k).  See also: CESCR Gen. Comment 22 in note 8 below.

[6]  See, e.g., CEDAW, General Recommendation No. 24: Article 12 of the Convention (Women and Health), para. 11, U.N. Doc. A/54/38/Rev.1, chap. I (“It is discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.”); CESCR, Gen. Comment No. 22, paras. 14, 43; HRC, Concluding Observations,: Italy, U.N. Doc. HRC/C/ITA/CO/6, paras 16-17 (2017); CEDAWConcluding Observations: Croatia, para. 31, U.N. Doc. CEDAW/C/HRV/CO/4-5 (2015) (urging the State party to “ensure that the exercise of conscientious objection does not impede women’s effective access to reproductive health-care services, especially abortion and post-abortion care and contraceptives”); Hungary, paras. 30-31, U.N. Doc. CEDAW/C/HUN/CO/7-8 (2013) (urging the State party to “[e]stablish an adequate regulatory framework and a mechanism for monitoring of the practice of conscientious objection by health professionals and ensure that conscientious objection is accompanied by information to women about existing alternatives and that it remains a personal decision rather than an institutionalized practice”); CESCR, Concluding Observations: Poland, para. 28, U.N. Doc. E/C.12/POL/CO/5 (2009) (“The Committee is particularly concerned that women resort to clandestine, and often unsafe, abortion because of the refusal of physicians and clinics to perform legal operations on the basis of conscientious objection…. The Committee calls on the State party to take all effective measures to ensure that women enjoy their right to sexual and reproductive health, including by enforcing the legislation on abortion and implementing a mechanism of timely and systematic referral in the event of conscientious objection.”).

[7]  See, e.g., CEDAW, Concluding Observations: Hungary, para. 31(d), U.N. Doc. CEDAW/C/HUN/CO/7-8 (2013); CRC, Concluding Observations: Slovakia, paras. 41(f), U.N. Doc. CRC/C/SVK/CO/3-5 (2016).

[8] UN CESCR, Gen. Comment No. 22, paras. 14, 43 (“Unavailability of goods and services due to ideologically based policies or practices, such as the refusal to provide services based on conscience, must not be a barrier to accessing services. An adequate number of health-care providers willing and able to provide such services should be available at all times in both public and private facilities and within reasonable geographical reach. … Where health-care providers are allowed to invoke conscientious objection, States must appropriately regulate this practice to ensure that it does not inhibit anyone’s access to sexual and reproductive health care, including by requiring referrals to an accessible provider capable of and willing to provide the services being sought, and that it does not inhibit the performance of services in urgent or emergency situations”).

————-For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

Comments are closed.

%d bloggers like this: