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).

Rationale

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.

To identify whether and how regulation of conscientious objection mitigates its impacts, a systematic review of studies published between 2010 and 2022 was undertaken, identifying 11 studies conducted in Argentina, Australia, Bolivia, Italy, Norway, Mexico, Portugal, South Africa, the United Kingdom, the USA and Zambia. A summary of the evidence from these studies is presented in Supplementary material 1, EtD framework for regulation of Conscientious objection. The evidence reviewed did not identify any country or setting where conscientious objection was regulated in a way that was effective in ensuring the availability and accessibility of abortion in practice. Approaches to regulation included some or all of the following: specifying who may exercise conscientious objection; stating whether or not institutions may claim conscientious objection; requiring conscientious objectors to refer abortion seekers to a willing provider; prohibiting conscientious objection in cases of emergency; and specifying how conscientious objection may be exercised (e.g. requirements to declare or register one’s status as a non-providing objector). Across the studies, the regulation of conscientious objection was still associated with refusal of access to abortion; opportunity costs for abortion seekers (including associated delays); disproportionate impacts (especially between public and private health-care provision); and unequally distributed workloads among health workers. The studies identified issues including lack of enforcement of existing regulations, limited accountability for non-compliance, lack of regulatory clarity about whether and how conscientious objection may be exercised, and impositions on health workers’ ethics or beliefs.