Italy: Widespread conscientious objection violates right to health and right to work in dignity

Many thanks to Tania Pagotto, a Ph.D candidate in comparative public law at Ca’ Foscari University of Venice in Italy.  She can be reached at:  tania{.}pagotto at unive.it.  We thank her for commenting on two recent decisions by the European Committee on Social Rights:

International Planned Parenthood European Network v. Italy (2014), Complaint No. 87/2012, decision published 10 March 2014 (European Committee on Social Rights, Strasbourg, France) Decision online[1]. 

Confederazione Generale Italiana del Lavoro (CGIL) v. Italy (2016), Complaint No. 91/2013 (European Committee on Social Rights, Strasbourg, France)  Decision online  [2]. 

These decisions addressed the issue of conscientious objection as an obstacle to lawful abortion in Italy, where interruption of pregnancy is regulated by Law no. 194 of 1978 [3].  The Act defines different conditions under which abortion is legal (i.e., where there is serious threat to the mother’s life, physical or mental health, or severe fetal malformation or anomaly).  The Act guarantees interruption of pregnancy as a public medical service.  However, it also provides healthcare professionals with the option to declare conscientious objection, which excuses them from involvement. In this medical field, Italian law encounters a strong conscientious objection movement, unevenly spread among different regions and hospitals.  Government statistics for 2014/15, published in 2016, show that about 70% of Italian doctors, 50% of anaesthetists, and 45% of other staff have declared conscientious objection. [4]

In International Planned Parenthood Federation – European Network (IPPF EN) v. Italy (2014),  the European Committee on Social Economic and Cultural Rights had found Italy in breach of certain provisions of the European Social Charter [5]:  the right to protection of health, both alone and in conjunction with the non-discrimination principle. The non-discrimination principle, in particular, requires the same legal treatment of individuals or groups, irrespective of their specific characteristics.  Italy could only guarantee the right to health for women who could afford to travel from hospital to hospital or from one region to another. Therefore, the Committee found a discrimination based on women’s economic and social capacities.

In a 2016 case, Confederazione Generale Italiana del Lavoro v. Italy, the same Committee confirmed the previous judgment, but went further.  It also found a violation of the right to work (paras 214-246), and the right to dignity in work (paras 282-298), because the state had failed to adequately address the burdensome workload on non-objecting doctors caused by the high percentage of objecting doctors in some areas of Italy.   Significantly, the complaint had been filed by one of Italy’s largest trade unions.  There was concrete evidence of the professional disadvantages for non-objecting medical professionals whose workload became dominated by the performance of abortions, restricting other career prospects.  This decision broke new ground in finding a violation of the right to work and the right to work in dignity of non-objecting providers.

After these two decisions against Italy, many voices are calling for an evolution of Law 194.   These two decisions suggest two legal directions.  On one hand, the territorial discrepancies regarding abortion services need to be taken into account.  The government must find adequate legal tools to distribute health services uniformly throughout the territory.  On the other hand, the supply of medical treatment concerning interruption of pregnancy by non-objecting medical personnel should not impair their right to work, nor their right to work in dignity.

Thus, the Italian government must seek a new equilibrium between patients’ fundamental rights and interests and doctors’ freedom of conscience, as well as an equilibrium among doctors, the majority of whom declare conscientious objection, and the minority of whom provide abortion services.

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[1] International Planned Parenthood European Network v. Italy (2014), Complaint No. 87/2012,  10 March 2014 (European Committee on Social Rights, Strasbourg, France) Decision 2014

[2] Confederazione Generale Italiana del Lavoro (CGIL) v. Italy (2016), Complaint No. 91/2013, 11 April 2016 (European Committee on Social Rights, Strasbourg, France) Decision 2016

[3] Italian abortion law:  Gazzetta Ufficiale della Repubblica Italiana, Parte I, 2 May 1978, No. 140, pp. 3642-3646.    Law 194 in English    In Italian: Legge 194,

[4]  [Italian Ministry of Health,  Report of the Health Ministry on implementation of the Law concerning norms for the social protection of maternity and for the voluntary interruption of pregnancy]  Ministero della Salute, Relazione del Ministro della Salute sulla Attuazione della Legge Contenente norme per la tutela sociale della maternità e per l’interruzione volontaria di gravidanza  (Legge 194/78)  dati definitive 2014 e 2015 (Roma, 7 dicembre 2016), page 44ff.  Online in Italian

[5] European Social Charter is online here.

Related Resources:
Conscientious Objection: Articles and resources from the International Reproductive and Sexual Health Law Program – updated online here.

“The Right to Conscience,” by Bernard M. Dickens, in Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens (University of Pennsylvania Press, 2014), 210-238  Abstract online
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