Chapter 3. Recommendations and best practice statements across the continuum of abortion care
Law & policy Recommendation 22: Conscientious objection (3.3.9)
3.3.9 Conscientious objection or refusal by health workers to provide abortion care
Refusal of abortion care on the basis of conscience operates as a barrier to access to safe and timely abortion (3 [para. 14], 36 [para. 8], 139 [para. 109], 140 [para. 353], 141 [paras 42, 43]), and unregulated conscientious refusal/objection can result in human rights violations, or lead women to seek unsafe abortion (142 [para. 23], 143 [para. 106], 144). In some countries conscientious objection is expressly regulated through employment law, employment contracts or the law on abortion. As a matter of international human rights law, States that allow conscientious objection must organize their health system and abortion provision in a way that ensures that conscientious objection does not result in the refusal of legally available abortion care, and regulate the exercise of conscientious objection in a way that reflects best international clinical practice, protects abortion seekers, and ensures that provider refusal does not undermine or hinder access to quality abortion care (145 [para. 12], 146 [para. 28]). WHO has also advised that “health services should be organized in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation” (19).
LAW & POLICY Recommendation 22: Conscientious objection
Recommend that access to and continuity of comprehensive abortion care be protected against barriers created by conscientious objection.
- In spite of the human rights obligation to ensure conscientious objection does not hinder access to quality abortion care, and previous WHO recommendations aimed at ensuring conscientious objection does not undermine or hinder access to abortion care, conscientious objection continues to operate as a barrier to access to quality abortion care. It is critical that States ensure compliance with regulations and design/organize health systems to ensure access to and continuity of quality abortion care. If it proves impossible to regulate conscientious objection in a way that respects, protects and fulfils abortion seekers’ rights, conscientious objection in abortion provision may become indefensible.
- The evidence reviewed considered the impact of conscientious objection on access to and availability of abortion care and not the effectiveness of regulating conscientious objection in terms of improvements in those outcomes. However, international human rights law provides some guidance as to how States can ensure that human rights of abortion seekers are respected, protected and fulfilled. These include:
- organizing the health system to ensure that sufficient, non-objecting providers are employed and distributed fairly across the country (3);
- putting in place clear and enforceable regulation of conscientious objection (147 [paras 30, 31], 148 [para. 41(f)], 149 [para. 37(b)]);
- ensuring adequate enforcement of the regulation of conscientious objection, including identifying, addressing and sanctioning non-compliance (147 [paras 30, 31], 148 [para. 41(f)], 149 [para. 37(b)]);
- outlining clearly who may object to what components of care (150 [paras 30-31], 148 [para. 41(f)], 3 [para. 43]);
- prohibiting institutional claims of conscience (147, 150 [para. 33(c)], 148 [para. 41(f)]);
- requiring objectors to provide prompt referral to accessible, non-objecting providers (3 [para. 43], 37 [para. 65(m)], 39 [para. 11], 150 [para. 33(c)], 146 [para. 28]);
- requiring conscientious objection to be exercised in a respectful and non-punitive manner; and
- prohibiting conscientious objection in urgent or emergency situations (3, para. 43).
Note on updating of the recommendation: This and other law and policy recommendations are not new recommendations. WHO’s 2012 Safe abortion guidance provided a composite recommendation related to law and policy (19); in this guideline, this has been developed into seven separate recommendations using GRADE methodology.
In order to identify the impacts of conscientious objection on abortion seekers and health workers, a systematic review of studies published between 2010 and 2020 was undertaken, identifying 26 studies conducted in Australia, Brazil, Colombia, Ghana, Italy, Mexico, Nigeria, Norway, Portugal, South Africa, Slovakia, Switzerland, Tunisia, the United Kingdom, the USA and Zambia. A summary of the evidence from these studies is presented in Supplementary material 1, EtD framework for Conscientious objection. The evidence reviewed established that conscientious objection may delay timely access to abortion and abortion care. Delay in care is exacerbated where there is a higher proportion of objecting health workers, and sometimes even in emergency cases where abortion is needed to save a woman’s life. Delays are sometimes deliberately imposed by objectors. The evidence also suggests that conscientious objection contributes to increased abortion-related morbidity and mortality, and that some health workers claim conscientious objection and refuse abortion in the public sector, while providing abortion for payment in their private practices.
The studies showed that conscientious objection imposes increased barriers on populations in specific settings: rural areas; settings where abortion law has recently been changed and there is insufficient clarity on who may object to what aspects of abortion care; places where conscientious objection is not effectively regulated; and settings where objecting health workers intentionally refuse referrals or use biased counselling, or inaccurate legal and medical information to try to dissuade and obstruct people from accessing abortion (refer to section 3.2.1: Provision of information).
Refusal of abortion on the basis of conscience has been shown to impose significant burdens on women and girls, especially uncertainty about whether and where they can access abortion. Some objectors decide whether to provide abortion on a case-by-case basis depending on their view of the reason a woman seeks abortion, which means availability is not clear or consistent. Furthermore, objectors’ referral practices are highly variable. The evidence demonstrated that while most objectors were willing to refer, this was not true for all, with some objectors referring on a case-by-case basis. Additionally, referral pathways may be circuitous and burdensome, which imposes additional difficulties and delays.
Conscientious objection has significant workload implications for health workers. Where there are many objectors, non-objecting health workers have an increased workload, abortion provision is often stigmatized, and those who do provide abortion care may experience career limitation or discrimination. Unclear, unenforced or non-existent regulation and legal frameworks for conscientious objection can create burdens on health workers, including in navigating challenges associated with their conscience or ethics, cause workplace conflicts, result in non-clinical staff attempting to claim conscientious objection, and undermine organizational models for the delivery of abortion.
KEY HUMAN RIGHTS CONSIDERATIONS RELEVANT TO CONSCIENTIOUS OBJECTION
- Availability, accessibility, acceptability and quality must be central to the regulation of sexual and reproductive health (SRH) services.
- States that allow conscientious objection must organize their health system and abortion provision in a way that ensures that conscientious objection does not hinder access to or result in the refusal of legally available abortion care.
- States that allow conscientious objection should regulate the exercise of conscientious objection in a way that reflects best international clinical practice, protects abortion seekers, and ensures that provider refusal does not undermine or hinder access to quality abortion.
- Everyone has the right to accurate information on SRH.
- Everyone has a right to privacy and confidentiality in SRH services.
- Everyone has a right to non-discrimination and equality in accessing SRH services.