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Abstract

Conscientious objection by health professionals is a global phenomenon. Worldwide, reproductive health care (e.g., abortion and contraception) is the most common basis of conscience-based refusals, but other healthcare services have also prompted conscientious objections. This entry deﬁnes conscientious objection; presents reasons for permitting health professionals to refuse to provide, assist in providing, or offer information about a healthcare service for reasons of conscience; identiﬁes the potential impact of conscience-based refusals on patient access and on other providers and healthcare institutions; explains alternative approaches to resolving conﬂicts between providers’ integrity interests and patients’ access interests; and considers the status of conscience-based refusals by health professionals in international and national law.

Introduction

Until early in the last half of the twentieth century, conscientious objection was a phenomenon associated primarily with military service. However, conscientious objection by health professionals (e.g., physicians, nurses, and pharmacists) has grown into a global phenomenon. Although there is no systematic data on its prevalence or frequency, there is evidence of its widespread occurrence worldwide (Zampas 2013). One of the factors that contributed to the expansion of conscientious objection beyond military service into health care was the elimination of some or all legal barriers to abortion. In regions throughout the world, a liberalization of abortion laws typically is followed by a reported increase in the incidence of conscientious objection (Finer and Fine 2013). However, it also has been reported in countries with less liberal abortion laws, such as most countries in Latin America and some African countries (Zampas 2013).

Available evidence suggests that worldwide, reproductive health care (e.g., abortion and contraception) is the most common target of conscience-based refusals by healthcare providers (Zampas 2013). In addition to reproductive healthcare services, a wide range of practices have prompted conscience-based refusals by health professionals. These include physician-assisted suicide, withholding or withdrawing life-sustaining measures (e.g., ventilator support or medically provided nutrition and hydration [MPNH]), active euthanasia, donation after circulatory determination of death (DCDD), and palliative sedation to unconsciousness.

Insofar as there are signiﬁcant regional differences in the types of healthcare services that are legal and available, it is to be expected that there will be signiﬁcant regional differences in the practices that occasion conscientious objection. For example, in areas of the world in which active euthanasia, physician-assisted suicide, and nontherapeutic abortion are prohibited by law, conscientious objection in relation to any of these practices would be pointless and unnecessary. Generally, conscientious objection is limited to legally permitted healthcare practices. In addition, some of the highly sophisticated and expensive tools of modern science-based Western medicine (e.g., advanced ICU care, organ transplantation, and assisted reproductive technology) are more likely to be found in wealthier developed societies than in poorer developing societies. Accordingly there is likely to be a wider range of healthcare services that will occasion conscientious objection in the former than in the latter.

A Definition Of Conscientious Objection

Conscientious objection by health professionals can be understood as a type of refusal: A health professional’s refusal to provide, assist in providing, and/or offer information about a healthcare service is an instance of conscientious objection only if the objection is conscience based. There are several different conceptions of conscience (Wicclair 2011). However, for the purposes of an examination of conscientious objection in health care, it sufﬁces to stipulate that an objection is conscience based only if it is based on the health professional’s moral (i.e., ethical and/or religious) convictions.

Health professionals can refuse to provide, assist in providing, or offer information about a healthcare service for a number of reasons that are not conscience based: (1) Refusals can be based exclusively on clinical considerations. For example, surgeons can refuse to operate if they believe that a brain tumor is “inoperable.” (2) Physicians and nurses can refuse to provide medical interventions to avoid harm to themselves. For example, to avoid the risk of infection, physicians and nurses might refuse to treat patients with highly contagious and deadly diseases such as Ebola, Middle East Respiratory Syndrome (MERS), or Severe Acute Respiratory Syndrome (SARS). In view of the many instances of violent attacks on abortion providers, obstetrician-gynecologists (OB/GYNs) might refuse to provide, and nurses might refuse to assist in providing, abortions due to concerns about their safety. In areas in which abortion providers are subject to social stigma, refusals can be based on a desire to avoid it. (3) Health professionals can refuse to provide medical goods and services due to concerns about their income. For example, physicians in the United States may refuse to provide medical services to Medicaid patients due to reimbursement rates that are perceived as inadequate. Although these kinds of refusals are not instances of conscientious objection, they, too, can be a source of potential conﬂicts with a health practitioner’s professional obligations. (4) Health professionals can refuse to provide or assist in providing medical services because they are legally prohibited and/or prohibited by accepted professional norms and standards. For example, as long as Belgium, the Netherlands, and Luxembourg are the only nations in which active euthanasia is legally permitted, physicians in other nations might refuse a request for it because it is legally prohibited and providing it would subject them to legal sanctions and possible loss of their licenses to practice medicine. By contrast, OB/GYNs who will perform abortions to protect the physical and mental wellbeing of patients even where it is prohibited by law exemplify “conscientious commitment” (Dickens and Cook 2011). (5) Health professionals can refuse to provide a service because it is not within the scope of their clinical competence. For example, an internist might refuse to provide palliative care to patients because he or she lacks the appropriate training and expertise.

Insofar as none of the refusals described in 1–5 is conscience based (i.e., based on the provider’s moral convictions), none can be considered an instance of conscientious objection. Hence, conceptual clarity requires carefully distinguishing between refusals that are, and are not, conscience based.

Reasons For Permitting Conscientious Objection

Several reasons can be given to permit refusals if they are conscience based (Wicclair 2011). First and foremost among them, permitting conscience-based refusals is said to provide “moral space” in which health professionals are able to maintain their moral integrity. It is claimed that moral integrity is especially threatened when the relevant moral beliefs are core moral convictions – that is, beliefs that are integral to a person’s self-conception or identity. To maintain moral integrity, it is argued, a person must refrain from performing actions that are against his or her conscience.

Several reasons can be offered to demonstrate the value of maintaining moral integrity (Wicclair 2011). The ﬁrst is based on the assumption that maintaining moral integrity can be an essential component of a health professional’s conception of a good or meaningful life. In this respect, it is argued, moral integrity has intrinsic worth or value to the health professional, and compromising it can result in substantial moral harm to him or her.

A second reason assumes that a loss of moral integrity can be devastating and can result in strong feelings of guilt, remorse, and shame as well as a loss of self-respect. It is argued that these are additional respects in which compromising moral integrity can result in moral harm.

Third, it is claimed that a loss of moral integrity can result in a general decline in a person’s commitment to morality and moral principles, which would be particularly undesirable in health professionals.

A fourth reason is based on the principle of respect for persons. It is argued that insofar as that moral principle requires us to allow others to act on the basis of their personal values and beliefs, it requires that we allow them to maintain their moral integrity.

Finally, it is claimed that moral integrity generally has intrinsic worth or value. It is asserted that having deep-seated moral convictions and a disposition to consistently act in accordance with them (to act conscientiously) is intrinsically valuable and worthy of respect. All other things being equal, it is claimed, a world that includes people with those characteristics is a better place than a world without them. It is not denied that insofar as moral integrity can involve a commitment to any ethical and/or religious beliefs, it does not guarantee ethically acceptable behavior. Nor is it denied that for some people, maintaining their moral integrity may result in a behavior that is racist, sexist, anti-Semitic, and the like. Nevertheless, it is argued that admiration and respect for moral integrity are at least partially independent of an assessment of ends and consequences. Moral integrity is said to be similar to courage and honesty, which are regarded as virtues despite the fact that they can serve immoral ends and produce undesirable consequences.

Reasons can be given for permitting conscience-based refusals beyond protecting providers’ moral integrity (Wicclair 2011). First, it is claimed that insofar as the exercise of conscience, for example, an OB/GYN’s refusal to perform second-trimester abortions, is an autonomous action, constraints on the exercise of conscience also are constraints on autonomy. It is argued that insofar as autonomy is valuable and worth protecting, so, too, is the exercise of conscience.

A second reason is based on the notion of ethical epistemic modesty/humility. Ethical epistemic modesty/humility is the view that although ethical beliefs can be correct or incorrect and justiﬁed or unjustiﬁed, we might be mistaken when we think that a particular ethical belief is correct or justiﬁed. This recognition is said to call for modesty or humility and a rejection of dogmatism in relation to beliefs that we do not accept. It is argued that requiring health professionals to follow established moral rules rather than giving them moral space enabling them to follow their own moral compasses would fail to demonstrate sufﬁcient modesty or humility.

A third reason is based on the belief that the “moral outliers” of today can be the harbingers of moral progress. An example that might be offered is a physician who refused on ethical grounds to withhold life-saving medical interventions for newborn infants with Down syndrome before it was generally recognized to be an ethically unacceptable practice.

A fourth reason is based on the recognition that some practices (e.g., abortion, palliative sedation to unconsciousness, and DCDD) continue to be controversial. It is argued that permitting conscientious objection acknowledges the controversial nature of such practices and gives health professionals who have moral objections an opportunity to opt out.

Fifth, it is claimed that permitting conscientious objection expresses tolerance and promotes cultural diversity. Speciﬁcally, it is said to promote cultural diversity within the health professions. This reason is particularly germane in multiethnic and multicultural societies. If conscientious objection were not permitted, people from minority cultures, ethnic groups, and religious traditions might be discouraged from entering health professions. It is argued that diversity in the health professions has both intrinsic and instrumental value (e.g., facilitating more effective patient-provider communication and better patient outcomes).

Finally, it is claimed that a failure to permit conscience-based refusals may discourage people who value moral integrity from entering a health profession. A potential unintended and unwanted consequence of not permitting conscience-based refusals is said to be preselecting for individuals who are ethically insensitive.

Conscience-Based Refusals And Patient Access

When a health professional refuses to provide, assist in providing, and/or offer information about a legal healthcare service for reasons of conscience, it can interfere with a patient’s access to that service. Speciﬁcally, as a result of the refusal, the patient might not have timely access to the service or securing timely access may impose substantial additional burdens on the patient.

The impact on patient access is largely context dependent. If a patient is able to receive the service in a timely fashion from another local provider, the impact on the patient can be minimal. However, the likelihood of receiving the service from another local provider depends on contextual factors such as the number of local practitioners who offer the service and the demand for the service from the local population. There are likely to be more providers in some disciplines (e.g., OB/GYN medicine or nursing and critical care medicine or nursing) in developed societies and large metropolitan areas than in developing societies and in rural areas; and the number of local providers in a discipline who offer the service depends in part on how many of them have conscience-based objections to the service. Moreover, as a result of restrictions in government or private health plans, patients may not have effective access to all local providers who offer the service.

When patients cannot secure access from local providers due to conscientious objection, they might be able to secure it if they are willing and able to travel considerable distances. However such travel can impose substantial additional physical, emotional, and ﬁnancial burdens on patients. Cannold (1994) describes a situation in the Australian state of South Australia between the years of 1988 and 1990 that illustrates how widespread conscientious objection in a region can impose substantial burdens on patients. He reports that a “massive number” of nurses refused, for reasons of conscience, to participate in abortions for “social reasons” past the twelfth week of pregnancy. As a result, the vast majority of women who wanted such abortions had to travel by bus (at state government expense) to Sydney or Melbourne, a travel time of 22 and 11 h, respectively, from Adelaide (the capital of South Australia). The burdens experienced by South Australian women who received late-term abortions would have been substantially less if only a few nurses had refused to assist in performing abortions for social reasons past the twelfth week of pregnancy.

Since patients may be unaware of all the legal healthcare options that are clinically appropriate in their circumstances, a provider’s conscience-based refusal to provide information can signiﬁcantly affect patient access. For example, in regions in which palliative sedation to unconsciousness and withdrawing medically provided nutrition and hydration are legal and available, patients and family members may be unaware of these end-of-life options and may therefore not have an opportunity to consider them. A similar observation applies to emergency contraception (EC). If a clinician (e.g., an emergency department physician or clinic doctor or nurse) has a conscience-based objection to EC and refuses to offer information about it to rape victims who do not know that it is possible to prevent pregnancy after intercourse, they might not have an opportunity to decide to take it.

There are alternative sources of medical information, such as the Internet. However, depending on where people live and their life circumstances, they may not have the time, ability, or resources required to ﬁnd and access relevant information. For example, a poor woman who lives in a small village in Malawi is less likely to have the needed time and resources to ﬁnd and access information about effective birth control than a wealthy woman who lives in Barcelona. Moreover, even if a patient is able to ﬁnd and access information, it may not be accurate, comprehensive, and comprehensible. In addition, it is doubtful that most patients are inclined to search for information to supplement what a practitioner provides. Patients may not suspect that a provider is withholding relevant medical information; and even if providers inform patients that they are withholding information about certain options for reasons of conscience, patients may be unable to ﬁnd it elsewhere without the provider’s assistance. Disclosure of all legal and clinically appropriate options is especially important in regions of the world in which the population’s access to medical information is limited and medical literacy is relatively low.

Resolving Conflicts Between Providers’ Integrity Interests And Patients’ Access Interests

When practitioners refuse to provide, assist in providing, and/or offer information about a healthcare service for reasons of conscience; there can be a conﬂict between the interests of practitioners and patients. On the one hand, providers have an interest in maintaining their moral integrity. On the other hand, patients have an interest in timely access to legal and clinically appropriate healthcare services. Conscience based refusals can give rise to conﬂicts between providers’ integrity interests and patients’ access interests.

There are a wide range of approaches to resolving such conﬂicts (Wicclair 2011). At one extreme, it is maintained that, with the possible exception of situations in which refusing to provide a service will likely result in death or serious injury to a patient, health professionals are not obligated to provide services against their conscience and should not be required to do so. In addition, if practitioners believe that they would be complicit in a moral wrong by providing information or referral, they are not obligated to do so. This approach aptly can be termed “conscience absolutism.” In its support, it can be claimed that a health professional’s interest in maintaining his or her personal and professional integrity is of such paramount importance and value that it generally can trump a patient’s access interests.

When evaluating a practitioner’s claim that she will not be able to maintain her professional integrity unless she refuses to provide a healthcare service, conscience absolutism does not require using the accepted norms and standards of the relevant health profession or specialty. Consider, for example, an OB/GYN who refuses to perform abortions or offer prenatal tests for genetic anomalies. Abortion and prenatal testing for genetic anomalies are accepted medical procedures within the discipline of obstetrics-gynecology. Nevertheless, according to conscience absolutism, the OB/GYN can consistently attempt to justify his or her refusal to provide these services by asserting that they are contrary to the proper aims and goals of obstetrics-gynecology and/or medicine generally. In this case, the OB/GYN’s claim about maintaining his or her professional integrity is based on his or her conception of the proper aims and goals of obstetrics-gynecology and/or medicine generally, and not the profession’s. Similarly, if the OB/GYN’s were to claim that providing information and referrals is sufﬁcient to establish moral complicity, depending on the circumstances, that claim might be based on his or her conception of moral complicity rather than one that is philosophically defensible.

At the other extreme, it is maintained that: (1) conscience-based refusals to provide legal, professionally accepted, and clinically appropriate services that are within the scope of a practitioner’s clinical competence are incompatible with the practitioner’s professional obligations and (2) professional obligations trump conscience. An apt shorthand label for this approach is “incompatibilism.” It is based on the principle that practitioners in health-related disciplines such as medicine and nursing have special obligations as professionals to respect patient’s values and autonomy and to put patients’ interests above their own. As Rhodes (2006, p. 78) puts it: “Someone who places his own interests [in “ease of conscience”] above his patients’ departs from medicine’s standard of altruism and violates a crucial tenet of medical ethics that every physician is duty bound to observe.”

Proponents of incompatibilism can respond to a conscience absolutist’s objection that no one should be required to act contrary to his or her deeply held moral convictions by asserting that individuals have the ability to protect their moral integrity by carefully selecting their career paths: “If people are not prepared to offer legally permitted, efﬁcient, and beneﬁcial care to a patient because it conﬂicts with their values, they should not be doctors” (Savulescu 2006, p. 294).

Brock (2008) endorses a moderate or middle ground approach that he designates the “conventional compromise.” According to this approach, practitioners are permitted to refuse to provide a healthcare service only if: (1) they inform patients about the service if it is clinically appropriate, (2) they refer patients to another provider who is willing and able to provide the service, and (3) the referral does not impose an “unreasonable burden” on the patient. The World Health Organization (WHO) and the International Federation of Gynecology and Obstetrics (FIGO) are among the international bodies and professional organizations that have issued guidelines that include similar referral and disclosure requirements.

Another type of moderate or middle-ground approach is more contextual. According to that approach, whether a healthcare professional has an obligation to inform or refer depends on the circumstances (Wicclair 2011). For example, if a patient can receive information from another provider in a timely manner, objecting practitioners might not be obligated to act against their conscience by providing it themselves. From the perspective of a contextual approach, the obligations of objecting practitioners are a function of the actions that are required to assure that, their conscience-based refusals notwithstanding, patients will receive pertinent information and legal, clinically appropriate healthcare services in a timely manner. Thus, compared to the conventional compromise, a contextual approach can provide more space to enable health professionals to maintain their moral integrity while at the same time protecting patient access.

Conscience-Based Refusals And Other Providers

In addition to the impact on patients, refusing to provide, assist in providing, and/or offer information about a healthcare service can be burdensome to other clinicians. In order to satisfy the demand for a service that some providers refuse to offer for reasons of conscience, providers who are willing to provide it may have to see more patients, work longer hours, travel more often and longer distances, and so forth. In regions in which the service is legal but nevertheless widely condemned, clinicians who offer it may be subject to social stigma. In the United States, since abortion providers have been targets of violence by extremist opponents of abortion, they risk far more serious consequences than social stigma. From an ethical perspective, it can be questioned whether ensuring patient access unfairly imposes excessive burdens on clinicians who are willing to provide services that others refuse to provide for reasons of conscience.

In institutional settings (e.g., clinics, hospitals, or nursing homes), depending on the speciﬁc circumstances, accommodating a practitioner’s conscientious objection can impose substantial burdens on the health professionals who are called on to provide the information or service that an objector refuses to provide. For example, in a hospital that offers abortion, accommodating an OB/GYN nurse’s ethical objection to participating in abortions or post-abortion care might require shift changes and a signiﬁcant increase in the workloads of other nurses. Such changes can be a substantial hardship. The burdensomeness can vary with a nurse’s life circumstances. For example, it might be more of a burden to a nurse who has other substantial responsibilities (e.g., family, research, teaching, and/or community service) than to a nurse with fewer other responsibilities.

Depending on the speciﬁc circumstances, accommodation can also impose substantial burdens on supervisors and administrators. For example, to accommodate the OB/GYN nurse who refuses to participate in abortions or post-abortion care, the administrator will have to make the necessary work assignment changes, which may require signiﬁcant modiﬁcations and rescheduling. It might even require hiring an additional (part-time) nurse, a potential burden to the institution.

There is no simple rule for determining when burdens are “excessive,” in part because excessiveness is context dependent. Moreover, there is no consensus on a standard of excessiveness that can be applied to speciﬁc situations. However, within healthcare institutions a fair procedural approach can be adopted to formulate and apply general standards. Institutions can implement mechanisms and procedures to determine when accommodating conscience-based refusals imposes excessive burdens on staff, administrators, and/or the institution. An opportunity for a fair process appeal of denied accommodations might help to reduce perceived and actual arbitrariness.

Conscientious Objection And International Law

Several conventions and treaties provide a legal basis for conscientious objection. Article 18 of the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the United Nations (UN) General Assembly in 1966, recognizes a right to freedom of thought, conscience, and religion that includes a right to exercise one’s conscience:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. (UN General Assembly 1966)

The UN Human Rights Committee’s commentary on Article 18 offers a broad interpretation of the scope of manifesting a religion or belief: “The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts” (UN Human Rights Committee 1993). According to the European Union Network of Independent Experts on Fundamental Rights (2005), an advisory body established by the European Commission, the scope of Article 18 includes conscientious objection by healthcare providers.

Article 9 of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms includes similar language to Article 18 of the ICCPR (Council of Europe 1950). In a resolution entitled “The Right to Conscientious Objection in Lawful Medical Care,” the Parliamentary Assembly of the Council of Europe (2010) speciﬁcally recognizes a right to conscientious objection by healthcare providers. It “invited” member states “to develop comprehensive and clear regulations” pertaining to “conscientious objection with regard to health and medical services” that “guarantee[s] the right to conscientious objection in relation to participation in the medical procedure in question” (Council of Europe 2010). In addition, the World Health Organization (WHO) recognizes a speciﬁc right of conscientious objection to abortion by healthcare providers (World Health Organization 2012).

The European Court of Human Rights is the Council of Europe body charged with hearing claims based on the Convention for the Protection of Human Rights and Fundamental Freedoms. In Pichon and Sajous v. France (App. No. 49853/99, Judgment of 2 October 2001 [Third Section]), the Court considered an application by two French pharmacists who alleged that their conviction for their conscience-based refusal to ﬁll prescriptions for contraceptives violated their Article 9 rights. Although the Court did not explicitly state that the pharmacists’ refusal to ﬁll prescriptions for contraceptives failed to qualify as a “manifestation” of their religious beliefs within the scope of Article 9, it did observe that “[t]he word ‘practice’ used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief.” In the view of the Court, the pharmacists’ conviction for refusing to ﬁll prescriptions did not violate their Article 9 rights. It offered the following reason:

[A]s long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justiﬁcation for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.

Since the Court combined several diverse considerations in one complex sentence, it did not provide a clearly articulated reason for ﬁnding the pharmacists’ application “inadmissible,” and it did not offer an unambiguous standard for determining if and when providers with conscience-based objections to providing a healthcare service have legitimate Article 9 claims.

In another case, one of four included in the same decision, Eweida and Others v. the United Kingdom (App. Nos. 48420/10, 59842/10, 51571/ 10, and 36516/10, Judgment of 15 January 2013 [Fourth Section]), the European Court of Human Rights held that a British therapist’s refusal on religious grounds to provide psychosexual therapy to same-sex couples was within the scope of Article 9. The State, according to the Court, had an obligation to secure the therapist’s Article 9 rights. However, the Court recognized competing interests (e.g., the nondiscrimination policy of the therapist’s employer). It held that the State did not exceed its discretion (“margin of appreciation”) in determining where to strike a proper balance between the competing interests. Accordingly, it rejected the therapist’s claim that his Article 9 rights were violated when British courts failed to uphold his claim that he was subjected to indirect discrimination when his employer dismissed him.

Each of the cited conventions and treaties also permits limitations on conscientious objection. For example, Article 18 of the ICCPR permits legal limitations if they are “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (UN General Assembly 1966). Article 9 of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms includes similar language (Council of Europe 1950). The Parliamentary Assembly of the Council of Europe “invitation” to member states to develop guidelines for conscientious objection by healthcare providers calls for provisions to ensure that patients: (a) “are informed of any conscientious objection in a timely manner and referred to another health-care provider” and (b) “receive appropriate treatment, in particular in cases of emergency” (Council of Europe 2010). The WHO guidelines state that the right to conscientious objection to abortion does not entitle healthcare providers “to impede or deny access to lawful abortion services because it delays care for women, putting their health and life at risk” (World Health Organization 2012). The guidelines require referral or, if referral is not feasible, “the health-care professional who objects, must provide safe abortion to save the woman’s life and to prevent serious injury to her health” (World Health Organization 2012). When women present with complications from unsafe or illegal abortions, they “must be treated urgently and respectfully, as any other emergency patient, without punitive, prejudiced or biased behaviours” (World Health Organization 2012).

Patients who were denied timely health services by providers with conscience-based objections have brought claims to the European Court of Human Rights, citing various Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms. In two cases involving patient requests for reproductive health services, the Court issued opinions highly critical of the Polish State. In R.R. v. Poland (App. No. 27617/04, Judgment of 26 May 2011 [Fourth Section]), a pregnant woman sought prenatal testing to conﬁrm suspected genetic anomalies. She satisﬁed medical and legal criteria for a prenatal test (amniocentesis) to determine whether the fetus had serious genetic anomalies, one of the few circumstances that would have permitted her to have an abortion under Poland’s restrictive abortion law at the time. Polish law allowed physicians to refuse to provide a medical service for reasons of conscience. However, doctors who exercised this right were required to inform patients where they could receive the service. Several physicians failed to satisfy this requirement and impeded the patient’s efforts to have the amniocentesis performed in a timely fashion. The amniocentesis conﬁrmed the existence of genetic anomalies that satisﬁed the legal criteria for an abortion. However, there was a delay in reporting the results. Due to all the delays, the legal time limit for an abortion had passed, and the patient was unable to receive an abortion. The Court was highly critical of Poland’s failure to appropriately regulate conscientious objection. Its opinion included the following statement: “States are obliged to organise the health services system 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.”

In P. and S. v. Poland (App. No. 57375/08, Judgment of 30 October 2012 [Fourth Section]), a minor who was pregnant as a result of rape, sought an abortion with her mother’s consent. At the time, Polish law permitted abortion for rape victims. Nevertheless, as a result of a series of refusals and delays, the young woman had to travel to hospitals in three cities (Lublin, Warsaw, and Gdańsk) before ﬁnally receiving an abortion in Gdańsk, a city located 500 km from her home in Lublin. As a result, she had to wait more than 2 months to ﬁnally receive an abortion. The European Court of Human Rights decision included the following blunt criticism of the Polish State: “The unwillingness of numerous doctors to provide a referral for abortion or to carry out the lawful abortion as such constituted evidence of the State’s failure to enforce its own laws and to regulate the practice of conscientious objection” (P. and S. v. Poland, p. 17). In addition the Court reiterated the R.R. v. Poland court’s statement about the State’s obligation to regulate conscientious objection by healthcare providers.

Lax State oversight of conscientious objection and enforcement of patients’ legal rights is not an isolated phenomenon limited to Poland. There are published reports of failures by governments in various parts of the globe to effectively and judiciously enforce laws in their own jurisdictions pertaining to conscientious objection, especially in relation to reproductive health.

Conscientious Objection And National Law

Some national constitutions include a right to freedom of thought, conscience, and/or religion, which can provide a general legal basis for conscientious objection. In addition, law-making bodies in several countries at the national, state, regional, and/or local levels and regulatory agencies have enacted laws/regulations permitting healthcare providers to refuse to provide legal health services for reasons of conscience. Such protections of conscience-based refusals are commonly referred to as “conscience clauses.”

If a particular service (e.g., nontherapeutic abortion or physician-assisted suicide) is not legally permitted in a particular jurisdiction, there is no need for a conscience clause permitting healthcare providers to refuse to provide that service. Conversely, when legally prohibited services are decriminalized or speciﬁc legal restrictions are eliminated by legislative acts, conscience clauses frequently are included in the enabling legislation. This pattern is particularly evident in a number of countries around the globe in relation to abortion. When decriminalization has resulted from judicial action, legislatures sometimes have enacted conscience clauses.

Where abortion is legally permitted (with or without restrictions), typically conscience clauses permit healthcare providers to refuse to perform the procedure. For example, of the 25 European Union member states in which abortion is legal, conscience-based refusals are permitted by law in 21 (Heino et al. 2013). Typically conscience clauses that are included in legislation permitting a speciﬁc practice (e.g., abortion) are limited in scope to that practice. Stand-alone conscience clauses can be broad in scope, or they can be limited to one or more speciﬁed practices (e.g., abortion and EC).

Conscience clauses can merely permit practitioners to refuse to provide a health care service or they can provide speciﬁc protections, such as immunity from criminal and civil liability and protection against disciplinary action by administrators, employers, licensing boards, and professional associations. Conscience clauses can be limited to members of speciﬁed health professions or practitioners who directly provide a service (e.g., only physicians who perform abortions and not nurses who assist); or they can apply to a wide range of ancillary personnel. They can also exclude institutions and limit their scope to individual practitioners. Some laws that permit practitioners to refuse to provide one or more healthcare services are silent about the reason for the refusal. Insofar as such laws do not require refusals to be based on a provider’s moral and/or religious beliefs, it is questionable that they are properly designated “conscience clauses.”

Although some conscience clauses do not offer any protections to patients, others do. Some of the latter merely include a general requirement that conscience-based refusals may not result in denying timely access to the healthcare service in question or information about it. Others include speciﬁc requirements, such as obligating the objecting practitioner to provide information about the service and/or referral and to provide the service if necessary to prevent death or serious injury to the patient.

Conclusion

There is no global consensus on the ethical acceptability of many of the healthcare services such as abortion, contraception, and euthanasia that frequently give rise to conscience-based refusals. There also is disagreement about if and when such services are “clinically appropriate.” However, there appears to be substantial agreement throughout the world that providers with conscience-based objections have legitimate integrity interests and patients have legitimate access interests. Moreover, many reports and guidelines issued by international bodies and professional organizations endorse the position that conscience-based refusals by health professionals should not substantially interfere with patients’ access to legal medical services. As the cases of R.R. v. Poland and P. and S. v. Poland illustrate, protecting patients can require governments to consistently and effectively regulate conscientious objection to ensure that practitioners who refuse to provide services for reasons of conscience fulﬁll their legal obligations and respect the legal rights of patients. However, insofar as the aim is to strike an appropriate balance between providers’ legitimate integrity interests and patients’ legitimate access interests, enforcing existing law may not afford adequate protection to patients or providers.

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