Conscientious Objection: Protecting Sexual and Reproductive Health Rights

This briefing paper examines the implications of healthcare providers' conscientious objection on the protection of sexual and reproductive health (SRH) rights. As defined in the introduction: "Healthcare providers’ conscientious objection is the objection to engaging in a particular procedure or activity because of its perceived incompatibility with the religious, moral or ethical dictates of an individual’s conscience. However, such conscientious objection can have serious implications for the human rights of healthcare users, including their sexual and reproductive health rights." Whereas the debate often focuses on national legal frameworks and medical ethics, this publication is designed to demonstrate the bearing of international human rights law on conscientious objection.

According to the paper, in the last 20 years, conscientious objection to SRH procedures has increased along with protections of SRH rights through international and domestic law. It has been used to excuse health care providers from certain procedures to which they object, but it is being extended to entire institutions, such as hospitals and clinics, and is being used by an increasing range of personnel including pharmacists dispensing contraceptives, nurses and technicians providing pre- or post-abortion care or cleaning instruments that have been used in particular procedures, and administrators writing referral letters. "In practice, conscientious objection most frequently occurs with respect to the provision of legal abortion; elective sterilization; fertility treatment; pre-natal examinations; and the prescription or dispensing of contraceptives, including emergency contraception."

The paper reviews samples of national legal protection of conscientious objection and then reviews international human rights law as a framework for addressing conscientious objection. Treaties that outline key human rights freedoms and entitlements related to conscientious objection include:

• the International Covenant on Civil and Political Rights (ICCPR);
  
•  the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
  
• the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
  

Guidance on the interpretation of these rights is provided by the documents adopted by the independent bodies of experts appointed to monitor the implementation of each treaty (treaty bodies), most importantly General Comments 7 and Concluding Observations on States parties’ periodic reports submitted under the treaties.

The paper highlights some of the key rights that arise in the context of conscientious objection - the right of freedom of thought, conscience, and religion (a right of particular importance to healthcare providers), and SRH rights (a set of rights of particular importance to healthcare users, including the right to the enjoyment of the highest attainable standard of physical and mental health) - and how these rights can be balanced appropriately in practice.

As stated here, international law protects freedom of thought, conscience, and religion. However, in the words of Pope John Paul II, speaking for the Roman Catholic Church, it "does not confer a right to indiscriminate conscientious objection. When an asserted freedom turns into license or becomes an excuse for limiting the rights of others, the State is obliged to protect, also by legal means, the inalienable rights of its citizens against such abuses.” For example, European Court of Human Rights held that two pharmacists, who refused to sell contraceptives, were imposing their beliefs on the public.

The paper also states that international law protects the receiver of care and, in the case of SRH, includes the right to a variety of services, facilities, goods, and conditions that promote and protect the highest attainable standard of both physical and mental health. Reproductive health and reproductive rights are defined by the International Conference on Population and Development (Cairo, 1994), and recognised as rights in the CEDAW.

Included in the discussion of conscientious objection is the right of all people to have the “freedom to decide if, when, and how often” to reproduce. This reflects the right of both women and men, on a basis of equality, to “decide freely and responsibly on the number and spacing of their children and to have access to the information, education, and means to enable them to exercise these rights."

In short, the exercise of conscientious objection by a health worker should not give rise to a denial of access to healthcare services, information, or goods that in turn denies women the freedom to control their health and bodies. This freedom of access includes the prohibition of discrimination based on gender, income, race, age, location, and physical and mental ability. Where only one health provider or facility is accessible, the exercise of conscientious objection by a health worker might constitute, according to this paper, a disproportionate and discriminatory impact on these women who are already marginalised geographically.

The paper describes appropriate conditions of SRH services availability, accessibility, acceptability, and good quality. The right of the public to information access obliges the "States to provide all healthcare users with reliable and up-to-date information about all goods, facilities and services that should be available to them, and where they can obtain them. States must ensure that conscientious objection does not limit access to essential information on sexual and reproductive health, necessary for individuals to take control of their own sexuality and related sexual health; access legal abortion; and understand procedures for referral." Participation is also a right enabling people to take part in health-related decision-making processes that affect them. The paper recommends that efforts be made to ensure the inclusion of marginalised groups.

Monitoring the use of conscientious objection in SRH is a concern, and some States have adopted monitoring procedures to regulate conscientious objection. Guidance documents include: the Declaration on the Rights of the Patient (1981), World Medical Association; the Declaration on Therapeutic Abortion (1970), World Medical Association; and the Ethical Guidelines on Conscientious Objection, International Federation of Gynecology and Obstetrics (FIGO): (2005).

The paper suggests that the State has the obligation to create an environment in which healthcare providers can most effectively contribute towards the realisation of SRH rights. For example, they should ensure healthcare providers receive training on human rights. Among other recommendations for States, the paper lists the following:

• States must also ensure that healthcare users have access to information about their rights, including their SRH rights, and their rights in the context of conscientious objection of healthcare providers.
• "States should take steps to ensure that policies and laws relating to conscientious objection and sexual and reproductive health are formulated on the basis of views expressed in consultations with health system users, in particular groups who may be marginalised and particularly affected by conscientious objection, such as women living in rural areas and in poverty and who have limited access to health services, goods and facilities. The views of healthcare providers must also be sought during, and inform, relevant policy making processes."
• "States must ensure that the availability of reliable and up-to-date information about sexual and reproductive health is not obstructed by the conscientious objection of individual healthcare providers. This should include information of particular relevance to groups marginalised because of their sexuality, ethnicity and educational background. States should proactively make available information about the legitimate use and scope of conscientious objection, and any limitations upon it set down by law. The information should be provided in a format that is appropriate to the needs of healthcare users."