Right to Abortion and Conscientious Objection

https://doi.org/10.63189/RUWH4328

The Republic of Slovenia is one of the countries that has elevated the right to conscientious objection to the constitutional level. Conscientious objection is the act of declining to carry out a legal duty or obligation by reason of personal convictions. Although conscientious objection was initially associated primarily with mandatory military service, it has in recent years taken on significant implications in the field of healthcare. Today, the right to conscientious objection in healthcare presents a complex ethical and legal challenge for both healthcare systems and healthcare workers. Conscientious objection has raised numerous questions, particularly in the field of reproductive medicine (also regarding questions related to euthanasia). Approaches to regulating this issue vary widely among countries. Some countries do not allow conscientious objection in healthcare at all (eg Turkey). In contrast, others face a high number of conscientious objections (eg Croatia and Poland), which negatively impacts the provision of healthcare services, thereby limiting or denying patients’ access to certain services guaranteed by national legislation.

Conscientious objection by healthcare workers regarding the performance of abortions is undoubtedly one of the most frequently occurring and discussed healthcare issues in connection with the termination of pregnancy. The right to abortion is a legal right in Slovenia. According to Article 17 of the Act on Health Measures in Exercising the Right to Free Decision on the Birth of Children^[1] (hereinafter referred to as the Abortion Act), an abortion is a medical procedure performed at the request of the pregnant woman if the pregnancy has not lasted more than ten weeks. An abortion that occurs after ten weeks can be performed at the request of the pregnant woman only if the risk of the procedure to the life and health of the pregnant woman and her future maternity is less than the risk posed to the pregnant woman or the child by the continuation of the pregnancy and childbirth (Article 18 of the Abortion Act).

The fundamental Slovenian laws governing the conscientious objection of healthcare workers are the Health Services Act^[2] (HSA) and the Medical Services Act^[3] (MSA). The HSA addresses conscientious objection in Article 56. It stipulates that healthcare workers (including both doctors and nurses) may refuse to perform a medical procedure if they believe it conflicts with their conscience and international rules of medical ethics (Article 56(1) of the HSA). Healthcare workers can exercise conscientious objection only if both conditions are met: the medical procedure must be conflicting with their conscience and with international rules of medical ethics.^[4]

Furthermore, healthcare workers must notify the healthcare institution of their conscientious objection, and this must be then considered. The healthcare institution must ensure that patients are still able to exercise their healthcare rights without disruption (Article 56(2) of the HSA). A healthcare worker cannot refuse to render emergency medical assistance (Article 56(3) of the HSA). Conscientious objection cannot be invoked in cases where standard treatment, diagnostics, therapy, and rehabilitation procedures need to be performed, nor in cases requiring emergency medical assistance or specific forensic medical tasks, such as expert testimonies or court appearances.^[5]

The Slovenian MSA also defines conscientious objection. A doctor may commence practicing medicine by registering with the register of doctors maintained by the Medical Chamber of Slovenia (Article 29(1) of the MSA). The register also includes a declaration regarding the doctor’s exercise of the right to conscientious objection (Article 31(1) of the MSA). The doctors must specify the circumstances to which their conscientious objection applies (eg abortion, sterilisation). A doctor may refuse to perform a medical procedure if he or she believes it conflicts with his or her conscience, provided it is not an emergency medical situation. The doctor must inform the patient of his or her conscientious objection in a timely manner and refer the patient to another qualified doctor. If the doctor is employed, he or she must notify his or her employer about the refusal (Article 49 of the MSA). A doctor who exercises conscientious objection without having previously declared this intention as required by Article 31 of the MSA commits an offense and is subject to a fine ranging from 650 to 1,200 euros (Article 81(4) of the MSA).

It would be simple to suggest that a person considering conscientious objection on religious grounds related to not performing certain reproductive health services (eg abortion, prescribing post-coital contraception to a rape victim) should not specialise in that area of medicine. However, the scope of conscientious objection in relation to reproductive medicine is much broader.^[6]

Can a paediatrician invoke conscientious objection and refrain from informing parents about or recommending vaccination against the varicella virus (chickenpox) because the vaccine was developed using cells from an aborted foetus?^[7] Does a doctor who bases his or her conscientious objection on religion impose his or her faith on those who may have different religious beliefs or who may be atheists?

Furthermore, emergency contraception, pregnancy prevention, and termination of pregnancy are only possible through prescription medication or referral from a personal gynaecologist. In practice, this has led to situations where doctors who oppose these procedures based on conscientious objection refuse to prescribe medications for pregnancy termination or emergency contraception. Pharmacists may also refuse to fill these prescriptions, even if the patient has a valid prescription.^[8] Can a nurse refuse to provide hygienic care to a patient who has undergone an abortion?

The right to conscientious objection can indeed be limited, as it may be restricted to protect other constitutionally protected values. Therefore, conscientious objection does not hold the status of an absolute right. Any limitations on the right to conscientious objection must adhere to the principle of proportionality and must not be prescribed by a regulation lower in the hierarchy than a law. The legislator may prescribe a substitute obligation, but it must not nullify or disproportionately impede the realisation of the right to conscientious objection.^[9] Here lies the critical difference. Doctors and other healthcare workers have voluntarily chosen their profession, which is a crucial difference between conscientious objection and mandatory military service, where soldiers are relatively powerless to avoid this obligation. Conscientious objectors to compulsory military service are even willing to accept penalties or alternative service (eg civil service) to exercise their conscientious objection. However, individuals have voluntarily chosen the medical profession and are thus obliged to provide, perform, and refer patients for procedures in accordance with medical standards. In this context, they (including medical professionals in Slovenia) have the option to file a conscientious objection, and in such cases, objectors typically do not face any consequences. This is why some authors refer to the exercise of conscientious objection in healthcare as ‘dishonourable disobedience’. It involves the refusal of a healthcare service that is legally permitted in Slovenia (and in other countries) under prescribed legal conditions. Such refusals are based on personal beliefs, which can be inappropriate and harmful to the patient. This issue has been particularly noticeable in the context of performing abortions, where the health and lives of pregnant women have been put at risk.^[10]

International human rights law imposes obligations on states that allow conscientious objection, requiring them to organise their healthcare systems and the provision of abortions in a manner that ensures that conscientious objection does not result in the denial of legally accessible abortion services. States must also establish legislative prerequisites for the exercise of conscientious objection. Refusal to perform an abortion based on conscientious objection must not hinder a patient’s access to safe and timely abortion services. The legal uncertainty in this area can lead to human rights violations, particularly affecting women.^[11]

In 2022, the World Health Organization (WHO) adopted the Guidelines on Safe Abortion (GSA), aimed at enhancing women’s autonomy in decision-making regarding abortion. Among other recommendations, the guidelines advocate for eliminating medically unnecessary political barriers to safe abortion, such as criminalisation, mandatory waiting periods, requirements for approval from others (eg partners or family members), institutional approvals, and restrictions on when abortions can be performed during pregnancy.^[12] The GSA further emphasises that the lack of regulation on conscientious objection to abortion can lead to human rights violations or drive women toward seeking unsafe abortions.^[13] To ensure both healthcare workers’ right to conscientious objection and patients’ right to access healthcare services, the healthcare system should be organised to: i) employ a sufficient number of unbiased providers and ensure equitable distribution across the country; ii) establish clear and enforceable regulations on conscientious objection; iii) ensure proper implementation of regulations on conscientious objection, including identification, handling, and sanctioning of non-compliance; iv) clearly define who can object to specific elements of healthcare; v) prohibit institutional conscientious objection; vi) require objectors to promptly refer patients to accessible providers who do not object to or conscientiously object to performing the healthcare service; vii) implement conscientious objection in a respectful and non-punitive manner; viii) prohibit conscientious objection in emergency or exceptional circumstances.^[14] Therefore, the WHO advises that healthcare services be organised to ensure effective enforcement of healthcare workers’ freedom of conscience in their professional context while simultaneously ensuring that patients are not denied access to services they are entitled to under applicable law in cases of conscientious objection.^[15]

The legal framework in Slovenia can effectively balance the exercise of doctors’ right to conscientious objection while ensuring crucial access to quality, appropriate, safe, and timely healthcare for patients seeking abortion. Introducing inappropriate barriers would constitute a violation of the fundamental human rights to the highest attainable standard of health. Therefore, it is essential to consider the possibility of limiting conscientious objection when mandated by law, necessary for public health or morals, and for the protection of the rights and freedoms of others (Article 9(2) of the European Convention on Human Rights). Countries should appropriately regulate the exercise of conscientious objection in their legislation to ensure transparency, predictability, and the safety primarily of patients, as well as healthcare workers and institutions within the healthcare system as a whole. It is particularly crucial to emphasise that discussions about abortion should take place at the societal level. It is not appropriate for these discussions to take place within hospitals, especially when it concerns safeguarding the health and lives of patients.

^[1] Abortion Act (Slovene Zakon o zdravstvenih ukrepih pri uresničevanju pravice do svobodnega odločanja o rojstvu otrok): Uradni list SRS (Official Gazette), no. 11/77, 42/86, Uradni list RS, no. 70/00 – ZZNPOB.

^[2] Health Sevices Act (HSA; Slovene Zakon o zdravstveni dejavnosti): Uradni list RS, no. 23/05 – official consolidated text, 15/08 – ZPacP, 23/08, 58/08 – ZZdrS-E, 77/08 – ZDZdr, 40/12 – ZUJF, 14/13, 88/16 – ZdZPZD, 64/17, 1/19 – odl. US, 73/19, 82/20, 152/20 – ZZUOOP, 203/20– ZIUPOPDVE, 112/21 – ZNUPZ, 196/21 – ZDOsk, 100/22 – ZNUZSZS, 132/22 – odl. US, 141/22 – ZNUNBZ, 14/23 – odl. US.

^[3] Medical Services Act (MSA; Slovene Zakon o zdravniški službi): Uradni list RS, no. 72/06 – official consolidated text, 15/08 – ZPacP, 58/08, 107/10 – ZPPKZ, 40/12 – ZUJF, 88/16 – ZdZPZD, 40/17, 64/17 – ZZDej-K, 49/18, 66/19, 199/21.

^[4] See also Cerar, 2007.

^[5] So Republika Slovenija – Ministrstvo za zdravje, 2019, p. 83.

^[6] So Savulescu; Fiala & Arthur, 2017, p. 254–258.

^[7] More Furton, p. 53-62; Savolescu, 2006, p. 295.

^[8] Cook & Dickens, 2006, p. 337-340.

^[9] So Orehar Ivanc, 2002.

^[10] So Fiala & Arthur, 2017, p. 255; Savulescu, 2006, p. 297.

^[11] WHO, 2022b, p. 60.

^[12] WHO (2022a).

^[13] WHO, 2022b, p. 60.

^[14] WHO, 2022b, p. 60.

^[15] WHO, 2022b, p. 60.

References

Abortion Act (Slovene Zakon o zdravstvenih ukrepih pri uresničevanju pravice do svobodnega odločanja o rojstvu otrok): Uradni list SRS, št. 11/77, 42/86, Uradni list RS, št. 70/00 – ZZNPOB.

Cerar, M. (2007) Ugovor vesti – pravica ali dolžnost?, Ius-info 17. 1. 2007, available: https://www.iusinfo.si/medijsko-sredisce/kolumne/10227 (25 June 2024).

Cook, J.R. and Dickens, B.M. (2006) The Growing Abuse of Conscientious Objection. Virtual Mentor, 8(5), pp. 337-340.

Fiala, C. and Arthur, J.H. (2017) There is no defence for ‘Conscientious objection’ in reproductive health care, European Journal of Obstetrics & Gynecology and Reproductive Biology, 216, pp. 254–258.

Furton, E. J. (2004) Vaccines and the Right of Conscience, The National Catholic Bioethics Quarterly, Spring 2004, pp. 53-62.

Health Sevices Act (HSA; Slovene Zakon o zdravstveni dejavnosti): Uradni list RS, št. 23/05 – uradno prečiščeno besedilo, 15/08 – ZPacP, 23/08, 58/08 – ZZdrS-E, 77/08 – ZDZdr, 40/12 – ZUJF, 14/13, 88/16 – ZdZPZD, 64/17, 1/19 – odl. US, 73/19, 82/20, 152/20 – ZZUOOP, 203/20 – ZIUPOPDVE, 112/21 – ZNUPZ, 196/21 – ZDOsk, 100/22 – ZNUZSZS, 132/22 – odl. US, 141/22 – ZNUNBZ, 14/23 – odl. US.

Medical Services Act (MSA; Slovene Zakon o zdravniški službi): Uradni list RS, št. 72/06 – uradno prečiščeno besedilo, 15/08 – ZPacP, 58/08, 107/10 – ZPPKZ, 40/12 – ZUJF, 88/16 – ZdZPZD, 40/17, 64/17 – ZZDej-K, 49/18, 66/19, 199/21.

Orehar Ivanc, M. (2002) Človekove pravice in temeljne svoboščine / 46. člen. Komentar Ustave Republike Slovenije, available: https://e-kurs.si/cleni/46-clen/ (5 June 2024).

Republika Slovenija – Ministrstvo za zdravje (2019). Priročnik za pripravo na strokovni izpit za zdravstvene delavce in zdravstvene sodelavce z višjo, visoko in univerzitetno izobrazbo za vsebino – področna zakonodaja (Ljubljana: Republika Slovenija – Ministrstvo za zdravje), available: https://www.gov.si/assets/ministrstva/MZ/DOKUMENTI/staro/3-ZBIRKE/2-Storitve/Strokovni-izpit/Podrocna-zakonodaja.pdf (5 March 2023).

Savulescu, J. (2006) Conscientious objection in medicine BMJ, 332(4).

WHO (2022a). WHO releases new guidelines on safe abortion, available: https://www.who.int/europe/news/item/09-03-2022-who-releases-new-guidelines-on-safe-abortion (16 May 2024).

WHO (2022b). Abortion Care Guideline, World Health Organization, Geneva.