(Jan 2018) A twist on conscientious objection: a regulatory proposal based on the practice of legal abortion in Argentina
Translated from Spanish: “Una vuelta de tuerca a la objeción de conciencia: Una propuesta regulatoria a partir de las prácticas del aborto legal en Argentina”
by Agustina Ramón Michel and Sonia Ariza, on behalf of CEDES and Ipas
Note: The authors do support allowing “CO” – however, they propose strict regulation of it, including enforcement measures. Most of the paper is spent critiquing “CO” and documenting its harms and gross overreach in the context of legal abortion care in Argentina. Notably, the authors recommend dropping the term “conscientious objection” in favour of the more accurate and fair phrasing: “refusal to provide abortion services on moral or religious grounds.”
This paper addresses the case of health professionals who refuse to provide legal abortions based on religious or moral beliefs, known as conscientious objection (CO). In much of the West, conscientious objection is permitted in the context of health services. There are several forms of objection: pharmacists who refuse to sell contraceptives; physicians who invoke religious beliefs as grounds for denying fertility services to single or same-sex couples or for tubal ligations or abortion; health professionals who invoke the rights of persons with disabilities to refuse prenatal diagnosis, or gender equality legislation to oppose body-fitting interventions; nurses who refuse to provide services to women who request or have had an abortion because of religious beliefs; medical students who refuse to use animals during medical training on moral grounds, among others.
In this paper on CO to abortion in Argentina, we focus on two fundamental and interdependent aspects: the reconceptualization of this phenomenon and a proposal to regulate it within the framework of a public health policy. In addition to secondary sources, we obtained opinions and perceptions from a survey of 269 members of the public health system and 11 semi-structured interviews with managers and chiefs of services in the public health system about the forms that CO takes, its causes and impact.
In the health context, CO clauses have been legislative tools used by certain professionals to excuse themselves from certain mandated tasks legally but which they consider objectionable on moral grounds.24 Indeed, CO has been a political tool to resist legislative and of public policies that challenge and dismantle the structure of sexuality traditional.25 According to Fiala and Arthur, CO “has allowed people to boycott democratically approved laws based on the deference of society to religious freedom and traditional values that assign women roles of maternity and child rearing”.26
In Argentina, these uses of CO are also observed.27 We have seen that the hierarchy of the Catholic Church has called for the use of objection as a mechanism to prevent access to contraceptives and abortion.28 Likewise, Catholic professional associations have developed guidelines for their members that privilege the use of CO.29 It has even been used in ways more associated with civil disobedience.30
This historicization of CO in the field of sexuality and reproduction should be contrasted with that of compulsory military service, the origin of this practice. They are related stories but differ in fundamental aspects. Alegre points out that in the field of sexual and reproductive health we are facing a “new objection”, different from the traditional objection to military service.40 On this point, Fiala & Arthur believe that it is dishonest for the CO in reproductive health care to bear that name, as it has little to do with what happens in the framework of compulsory military services: they have a different ethical basis.41
…CO functions as an institutional escape valve, to avoid all the costs generated by the provision of abortion services in this precarious context. It is a mechanism used not only by professionals but also by entire teams and health authorities, so as not to be responsible for the obligations of respect, protection and of the right to access an abortion, and to take shelter in hostile environments.
Of course, there are also those who have used CO, under the argument of protection of individual moral integrity and moral plurality, to pursue political or ideological objectives (including religious, social, etc.) linked to a traditional sexuality, sexual roles and family forms that are considered the only normal ones. In this way, CO becomes the Trojan Horse in the contested field of reproductive rights.57 This is the case of the use of CO by the Catholic Church from its high hierarchies, who have urged their faithful to use it as a way to counteract the favourable changes to reproductive rights, as Vaggione points out.58 In Argentina, Pope Francis has called on doctors to use CO against abortion and euthanasia, for example.59 So, what was enshrined as a guarantee to protect the moral integrity of people, turns out to be an instrument to deny rights to pregnant women and ignore their integrity and moral agency.
The proposed regulation is based on replacing the term CO with “refusal to provide abortion services on moral or religious grounds”, as this is considered a more accurate and fairer term to those who knowingly provide or request these services. Bearing in mind that a significant proportion (42%) of the people surveyed for the construction of this proposal considered that the stigma associated with the provision of services is one of the reasons that lead professionals to CO, we believe that it is fundamental to promote a change in the legitimacy of the provision of services and in that sense, we suggest this new designation.
Source, full article in Spanish: CLACAI – Latin America