Invoking conscientious objection in reproductive health care: evolving issues in Peru, Mexico and Chile

Abstract

As Latin American countries seek to guarantee sexual and reproductive health and rights, opponents of women's rights and reproductive choice have become more strident in their opposition, and are increasingly claiming conscientious objection to providing these services. Conscientious objection must be seen in the context of the rights and interests at stake, including women's health needs and right to self-determination. An analysis of law and policy on conscientious objection in Peru, Mexico and Chile shows that it is being used to erode women's rights, especially where it is construed to have no limits, as in Peru. Conscientious objection must be distinguished from politically-motivated attempts to undermine the law; otherwise, the still fragile re-democratisation processes underway in Latin America may be placed at risk. True conscientious objection requires that a balance be struck between the rights of the objector and the health rights of patients, in this case women. Health care providers are entitled to their beliefs and to have those beliefs accommodated, but it is neither viable nor ethically acceptable for conscientious objectors to exercise this right without regard for the right to health care of others, or for policy and services to be rendered ineffectual because of individual objectors.

Résumé

Alors que les pays d'Amérique latine s'efforcent de garantir la santé et les droits génésiques, les opposants aux droits des femmes et au choix de reproduction deviennent plus virulents et invoquent de plus en plus l'objection de conscience pour ne pas assurer ces services. L'objection de conscience doit être placée dans le contexte des droits et des intérêts en jeu, notamment les besoins sanitaires des femmes et leur droit à l'autodétermination. Une analyse du droit et de la politique au Pérou, au Mexique et au Chili montre que l'objection de conscience est utilisée pour saper les droits de la femme, en particulier quand on l'interprète comme n'ayant pas de limites, par exemple au Pérou. Il faut distinguer l'objection de conscience des tentatives politiques d'affaiblir la loi ; autrement, les processus encore fragiles de redémocratisation en cours en Amérique latine pourraient être menacés. La véritable objection de conscience exige de trouver un équilibre entre les droits de l'objecteur et les droits des patients, dans ce cas les femmes, à la santé. Les soignants ont droit au respect de leurs croyances, mais il n'est ni viable ni éthiquement acceptable pour les objecteurs de conscience d'exercer ce droit sans tenir compte du droit d'autrui aux soins de santé, ou des politiques et des services qui sont rendus inopérants en raison des objecteurs individuels.

Resumen

A la vez que los países latinoamericanos buscan garantizar la salud y los derechos sexuales y reproductivos, los oponentes de los derechos de las mujeres y la libre elección reproductiva se han vuelto más estridentes en su oposición, y cada vez más invocan su derecho a la objeción de conciencia para no proporcionar estos servicios. La objeción de conciencia se debe ver en el contexto de los derechos e intereses en juego, incluidas las necesidades de salud de las mujeres y su derecho a la autodeterminación. Un análisis de las leyes y políticas respecto a la objeción de conciencia en Perú, México y Chile muestra que ésta se está utilizando para socavar los derechos de las mujeres, especialmente en lugares donde se interpreta como algo sin límites, como en Perú. La objeción de conciencia se debe distinguir de los intentos motivados por política para minar la ley; de lo contrario, los procesos aún frágiles de re-democratización en curso en Latinoamérica podrían ponerse en riesgo. La verdadera objeción de conciencia requiere un equilibrio entre los derechos del objetor y los derechos de salud de los pacientes, en este caso mujeres. Los prestadores de servicios de salud tienen derecho a sus creencias y a que se les respeten esas creencias, pero no es ni viable ni éticamente aceptable que los objetores de conciencia ejerzan este derecho sin respetar el derecho de los demás a los servicios de salud, o hacer que las políticas y los servicios resulten inútiles debido a los objetores.

Key Words:

• conscientious objection
• women's human rights
• reproductive health services
• Chile
• Mexico
• Peru
• Latin America

Howland argues that militant religious fundamentalists have been key actors in efforts to derail gender equality, emphasising cultural relativism and traditional religious beliefs that place women in a subordinate position.¹ In Latin America today, the usual barriers created by inadequate funding are being compounded as claims of conscientious objection are playing a key role in the denial of reproductive health services. People depend on public health systems for their reproductive health needs, especially the poor, and many fertility regulation decisions require assistance from a health care provider. However, in Latin America, access to accurate information and care is increasingly under siege from providers who claim that rendering such care is counter to their religious or personal beliefs.

Conscientious objection to providing a specific health care service leads to an exemption from professional duty. This is a legal obligation on the state if the person who raises the objection is a public employee. Hence, a conscientious objection must satisfy certain criteria. To avoid harm to those seeking care, responsible objectors cognisant of patient rights must make their stand clear to clinic and health administrators', co-workers and patients alike. Ethically, health professionals are required not to impose their beliefs upon patients and to guarantee their right to adequate, quality care, otherwise it is considered an infringement of women's reproductive rights or a violation of the bioethics principle of non-maleficence.²³ If health care providers are not forthright about their objections, their position can be simply – and correctly – perceived as an arbitrary denial of care, subject to administrative, criminal or civil liability.

This paper outlines the vast array of circumstances in which conscientious objection may emerge as an issue, analyses the similarities and differences in policy and practice of conscientious objection in reproductive health care in Peru, Mexico and Chile today, and reviews the normative context in which conscientious objection has become a subject of political debate in Latin America.

Conscientious objection in Latin America

In Latin America, expansion of a human rights culture has had a ripple effect on cultural and social norms, to the point of challenging traditional notions of sexuality and reproduction. A key feature of Latin American society is its predominant yet highly pragmatic Catholicism, e.g. statistics show avowedly Catholic governments providing increasing support for access to birth control.⁴ Inherent to expanding human rights are the changes taking place in the fields of sexuality and reproduction. These can be seen in the public debate around agency and bodily autonomy, in relation to the “search for consensus on the universal nature of sexual and reproductive rights.”⁵

The legislative and policy goals of governments may not always coincide with those of women, and the denial of reproductive agency should be seen as a denial of citizenship. The Argentinean and Chilean military governments of the 1970s and 80s, inspired by so-called doctrines of national security, promoted population growth for military, geopolitical and defence reasons. In Argentina, the public health system restricted access to contraception and banned voluntary sterilisation under Criminal Code provisions on mutilation.⁶⁷ Chilean policy, on the other hand, held in 1979 that contraceptive information was to be provided only to “mature users” in order to prevent “abuse”.⁸

Many factors have since intervened to shape reproductive health law and policy in the region, away from demographic control and poverty reduction towards efforts to improve health and living conditions. In Chile, most policy has been public health-driven.⁹ In Mexico, feminists have been active for many years in demanding both family planning services and safe, legal abortion. In April 2007 abortion on request was legalised in the federal district of Mexico City up to 12 weeks of pregnancy. When the law was challenged by the Attorney General, the Supreme Court of Mexico's judgement upholding the law shifted the issues from ideological and religious arguments to women's human rights, affirming women's right to life, health and reproductive freedom.¹⁰ These represent incredible changes in a short period of time. In response, many conservatives have shifted their efforts from international fora to national level, where they have sought suitable niches from which to oppose legislation and health policy empowering women.¹¹

While church–state relations vary a great deal from one Latin America country to the next, organised religion has greatly influenced the law, especially where sexuality and reproduction are concerned. Many Catholics, however, accommodate their religious beliefs “pragmatically” to their private decisions on sexuality.¹² Nevertheless, the Latin American social order has been inextricably linked to the church since colonial times, from burials and marriage registration to public education and the protection of human rights. The role of bishops today ranges from acting as mediators in native land claims and demanding fair salaries for workers to opposing sex education programmes in schools and HIV/AIDS campaigns like in Chile.^{13 14 15} Thus, governments of all stripes continue to feel the need to seek the blessing of church authorities.

This is the context in which abortion legislation and conscientious objection in Latin America has to be understood. Save for Mexico City, Puerto Rico and Cuba, most of Latin America restricts abortion. But even where specific grounds for abortion are not criminalized, this has not meant availability of services. Given the abundance of legal and social barriers to abortion, conscientious objection was rarely necessary in such restrictive legal settings.

But conscientious objection claims have emerged with force in recent years in the wake of laws and policies guaranteeing reproductive health and rights (Peru, Argentina), laws permitted induced abortion (Mexico City, Colombia^*), or introducing emergency contraception as part of health policy (Chile). Conscientious objection claims are also a reaction to these changes.

A clause in the law permitting conscientious objection is in all cases about the objector's fundamental rights, linked to the right to freedom of thought and creed. Individuals with the agency to follow their beliefs and thereby refuse to perform a professional obligation, have only to invoke such a provision, found predominantly in health laws, e.g. those of Mexico City¹⁷ and Peru.¹⁸ Institutions do not have beliefs and cannot claim conscientious objection. Although Argentina's legislation provides for institutional exemptions, this is best understood as referring to their religious mandate or nature, rather than the granting of conscientious objection per se.¹⁹ In Colombia, the 2006 landmark Constitutional Court decision liberalising abortion made clear that “conscientious objection is a right accruing solely to individuals, not to entities or to the State. No clinic, hospital, health centre or any such facility by any other name can claim conscientious objection in order to refuse to perform an abortion if all other conditions in this decision are met”.¹⁶

Recent cases illustrate problems with the unlimited exercise of conscientious objection, such as an incident where several Colombian hospitals refused to terminate the pregnancy of a 13-year-old victim of rape. Doctors in three hospitals and a medical insurance company signed a joint refusal letter citing their religious beliefs, and did not refer the girl to a provider, despite Health Ministry regulations obliging them to do so or risk sanctions. The girl's family took the case all the way to the Constitutional Court, which ruled in the girl's favour, stating that in all cases, the refusal to ensure she was able to have a legal abortion infringed her fundamental rights.²⁰ The invoking of conscientious objection has gone so far in Colombia that a judge refused to hear the case of a woman requesting an abortion for fetal malformation in 2006; this argument was accepted and the case referred to another judge.²¹

Peru: efforts to entrench unlimited conscientious objection laws

Peru has had an uneven reproductive health record since the mid-1980s. While health policy has recognised the right of women and men to control their fertility, those aims have sometimes overlapped or been at odds with demographic targets.²² In 1985 Peru passed a law guaranteeing access to the information and medical services needed to choose a family planning method free from coercion and discrimination.²³ A decade later, Peru added voluntary sterilisation as a method of fertility regulation,²⁴ which the Catholic church had bitterly opposed,²⁵ and in July 2001 emergency contraception became available in public health facilities,²⁴ though conservative groups in the US managed to stall funding for it.²²

A key development came in 1993, as a new Constitution recognised the right to health care and to freely decide on birth control methods.²⁶ Then, the 1997 Health Act established that the right to health care is a human right and cannot be relinquished.²⁷ This law allowed for conscientious objection by providers of health services, provided it posed no risk to patient health.

In July 2001 a new bill on conscientious objection was introduced,²⁸ following approval of emergency contraception, which sought to repeal the requirement to refer the patient and the patient risk proviso of the existing law. Its drafters argued that the bill was required to protect women from involuntary and forced sterilisation, based on reports, e.g. of the Peruvian Ombudsman's Office,²⁹ that the government's sterilisation quotas and incentives had led to violations of women's rights. The bill was another example of ongoing, unyielding opposition to sterilization and contraception in Peru. As early as 1996, conservative legislators had asked the Constitutional Court to rule on the constitutionality of including sterilisation in family planning programmes.³⁰ Years later, in 2006, after emergency contraception had become available, when women's groups defeated the government in court, the Constitutional Court was again asked to intervene.³¹

Yet, the bill linking forced sterilisation to conscientious objection was spurious. It addressed neither the fact that objection may limit women's ability to be sterilised of their own free will, nor that health care providers could continue to coerce women to be sterilised without informed consent. In addition, as forced sterilisation was already an offence under the criminal code as a form of mutilation of a main organ or body part;³² hence, no change in the law was required. What Peruvian women required, in fact, was protection from practitioners and other anti-abortion crusaders who imposed their beliefs upon others.

The bill died in committee, but in April 2004 its proponents successfully fought to reinstate it on the legislative agenda²⁴ in an amended version that made conscientious objection applicable in the private health system, and extended conscientious objection to anyone in a position to facilitate procedures they consider inimical to human dignity or dangerous to life or health.³³ It left it to the objector to decide what constituted a health risk or offended human dignity. The congressional committee approved the bill, in spite of the views of the Peruvian Ministry of Health and College of Physicians, both of which said that conscientious objection has its limits. The latter even noted that practitioners cannot exempt themselves when no one else is available, nor in emergencies that pose an immediate danger to life or limb.³³ The bill does not take into account or try to balance the rights of providers and patients. It also denies remedies to both women and the health care system, as no disciplinary action can be taken if adverse consequences should ensue. Fortunately, it is still languishing in Congress.

Mexico: abortion and conscientious objection

Mexico has a strong secular identity and a progressive rights tradition.³⁴ Both the Constitution and the law protect the right to make informed reproductive decisions, and the Constitution recognizes the right to choose the number and spacing of births in a free, informed and responsible manner.³⁵ Under the federal political system, what is legislated at federal and state levels may differ.

While the 1984 General Health Act, which complements constitutional health rights, makes no reference to grounds for conscientious objection to professional duties, it does make providers who refuse to give care liable to fines and/or imprisonment. Refusal to care for patients whose life is at risk is an aggravated offence.³⁶ This law was not enforced in the case of Paulina, however, a 13-year-old rape victim, whose mother was misinformed about the law and the safety of abortion and was successfully pressured in 1999 to withdraw her request for a legal abortion for her daughter. A subsequent criminal investigation also yielded no justice at the domestic level, mostly due to lack of political will.^{37 38 39} The Mexican government reached a “friendly settlement” with Paulina's family after a petition to the Inter-American Human Rights Commission.⁴⁰

There are provisions for the right to conscientious objection in the 1987 Mexico City Health Act relating to abortion.⁴¹ The Act imposes an obligation on an objecting provider to refer the woman elsewhere, or carry out the abortion where there is a clear and present danger to her life or health. In addition, the Health Law of the state of Jalisco has a general conscientious objection clause, not only in relation to abortion but also any other procedure, including medical research.⁴² Both provisions clash with the federal Law on Religious Associations and Public Culture 1992 that states that religious beliefs cannot exempt anyone from the obligation to abide by and respect the law.⁴³ However, the state laws have preeminence in this instance.³⁶

A clause on conscientious objection was incorporated into the Mexico City Health Law following the change in Mexico City's Criminal Code in November 2004, which legalised abortion on some grounds. Before that, Mexico City's law made no mention of it. In 2006, new abortion regulations recognised the rights of public sector objectors.⁴⁴ However, hospitals were required to ensure that non-objecting providers were available. With the legalisation of abortion until 12 weeks, the Mexico City Health Law retained the conscientious objection clause.

Of interest is how the law has tried to balance the interests at stake. It states that conscientious objection cannot be claimed in emergency cases, clearly requiring that when the two sets of rights conflict, life and health must prevail over religious or personal belief. In addition, it required providers to make timely, respectful referrals.⁴⁴

Shortly after the unprecedented decision to legalise first trimester abortion on request in April 2007,⁴⁵, opponents launched a campaign calling on staff at a key hospital to utilise the conscientious objection clause.⁴⁶ In May 2007, a senator for the rightist Partido Acción Nacional (PAN) proposed a constitutional amendment enshrining conscientious objection,⁴⁷ claiming that existing legislation did not guarantee objectors' rights.

Mexican legislation is being changed as a result of the 2007 Mexico City abortion law, in support of fetal rights in a number of state constitutions.⁴⁸ Opponents of abortion have also tried to enforce conscientious objection clauses in an effort to derail any progressive changes.

Chile: conscientious objection and emergency contraception

Drafted and passed under the Pinochet regime, the Chilean Constitution is a rigid, conservative instrument with exacting requirements for amendment. In it, social and economic rights enjoy little protection, and reproductive rights are nonexistent, and it does establish that “the law shall protect the life of the unborn”.⁴⁹

Unlike Peru, Mexico and Argentina, Chile lacks comprehensive reproductive and sexual health and rights legislation. Although in October 2000⁵⁰ civil society representatives and legislators did sponsor a comprehensive bill, it was not passed. However, Chile has had wide-ranging reproductive health programmes in place since the mid-1960s with a focus since the mid-1990s on reproductive health and rights.⁹ Current Health Ministry guidelines operate under the premise that individuals and families have the right to freely decide the number and spacing of their children.

Public health policy and medical standards and procedures, such as vaccination, STI control and health campaigns, are all within the purview of the central government. Technical guidelines are mandatory for all facilities, whether public or private or run by central or local government.⁵¹ While primary care is centrally funded, delivery decisions are made locally.⁵¹ The law grants some latitude to the central government to step in when local governments fail to meet their obligations.

Through decades of the Chilean family planning programme, conscientious objection was not an issue. It first surfaced in April 2004 when emergency contraception was included in the treatment protocol for rape victims and made available free of charge through public health facilities. The protocol required administrators to discourage referral of sexually abused women to conscientious objectors and stated that patients, parents and guardians had a right to make informed decisions without pressure or coercion and according to their values and beliefs.⁵² This requirement gave recognition to a problem extant within the Chilean public health system. Indeed, a study of how the courts and health system were treating sexual offences victims had found that some health care providers were not willing to prescribe emergency contraception, a drug sold in pharmacies since August 2001,⁵³ in cases of rape.

In addition, some mayors were also claiming conscientious objection to refuse emergency contraception pills to rape victims in facilities under their jurisdiction.⁵⁴⁵⁵ They have blocked central government distribution efforts and prevented local clinics from dispensing free emergency contraception. It is difficult to say how many objecting mayors there were, but in April 2008, 15% of mayors had responded to a survey to say they would not supply emergency contraception.⁵⁶⁵⁷ The Catholic Archbishop of Santiago threw his support behind them and urged Catholics to defy Health Ministry directives.⁵⁸ Their reaction showed the enforcement mechanism regulating the relationship between central and local governments to be weak and ineffective, as all the central government could do was withhold financial support, which would only hurt community access and quality of care. Compounding the situation, an ineffectual Health Minister failed to provide guidance to foster compliance and did not clearly establish that conscientious objection pertains to providers, not local government.

New efforts to secure women's reproductive rights by the administration of Michelle Bachelet ignited fresh opposition. In September 2006, the Health Ministry issued new fertility treatment regulations, which recognised conscientious objection provided patient access remained unaffected.⁵⁹ The conservative mayors challenged in court the provision of contraception to adolescents without parental consent. Conservative legislators, for their part, took the issue to the Constitutional Court,⁶⁰ which ruled that while the government was within its prerogative, it had to reissue the directive in the form of an Executive Order subject to administrative oversight. The Bachelet government did this in February 2007. The conservative opposition reacted by asking the Constitutional Court to rule emergency contraception and copper- and levonorgestrel-based IUDs as well as adolescent contraceptive services unconstitutional. While the regulations were upheld in the lower court, the Constitutional Court did rule that providing, prescribing and informing about emergency contraception in public health facilities was “unconstitutional”.⁶⁰ The other two claims were dismissed.

In response, drug company chains controlling 93% of the market⁶¹ removed emergency contraception from their shelves. The Health Ministry responded by levying heavy fines under laws making this method part of the National Formulary.⁶²⁶³ The drug chains countered that forcing them to sell contraceptives they deemed abortifacient violated their right to conscientious objection.⁶⁴ But while individual pharmacists could arguably have claimed an objection, a corporation certainly could not. In September 2009 a new series of administrative investigations of pharmacies began after a 14-year-old girl who had been raped could not obtain the pills.⁶⁵ In June 2009, President Bachelet tabled the Birth Control and Emergency Contraception Bill in Congress to secure all methods of birth control, including emergency contraception, in the public health care system.⁶⁶ The Bill, which is pending approval in Congress, makes no mention of conscientious objection.

Limits on conscientious objection: women's rights

Women's equality rights intersect with reproductive and sexual rights. Yet, their ability to control their sexual and reproductive lives is often at odds with cultural and religious tradition. In the Latin American region, recent strides made by religious fundamentalists seeking to curtail women's reproductive rights closely track those in the United States, where conscientious objection plays a key role in undermining access to reproductive health services.⁶⁷ Conscientious objection must be distinguished from politically-motivated attempts to undermine the law; otherwise, the still fragile re-democratisation processes underway in Latin American may be placed at risk.

Women's ability to control their fertility and decide whether and when to have children must be examined in the social and cultural context in which their rights are exercised. Women are often not accorded full citizenship in ensuring that the health care system meets their needs.⁶⁸ If economic constraints are at the core of a decision not to have children, for example, no real choice exists, as economic determinants impair and limit “choice”. Moreover, if reproductive health services are not available because providers are not willing to provide them on conscience grounds, women's ability to exercise their health rights and to live life according to their own beliefs and conscience will be jeopardised. Harm to health and life may result, intended or not.⁶⁹

True conscientious objection requires that a balance be struck between the rights of the objector and the health rights of patients, in this case women. Health care providers are entitled to their beliefs and to have those beliefs accommodated, but it is neither viable nor ethically acceptable for conscientious objectors to exercise their rights without regard for the right to health care of others. In this, it is important not to lose sight of issues of class and vulnerability. Health professionals, especially members of the medical profession, belong more often than not to the economic, social, and political élite in many countries in the region. They have many opportunities to influence the political process and lobby for health law and policy. As a group, their opinions and views carry great weight.⁷⁰ As Cook and Howard argue, physicians entering the profession inspired by a religious commitment to help others should keep their role in patient care separate from their quest for spiritual virtue.⁷¹

To allow health professionals' personal beliefs to trump all other considerations would mean that some members of society are more equal than others. Thus, limits must be imposed on health professionals' right to object on grounds of conscience. An individual's objection to serving women's needs for legal abortion, sterilisation, or contraceptive services should be permissible, provided other practitioners are available to make them available in a timely manner. What is not acceptable is for policy and services to be rendered ineffectual because of individual objectors.⁷² The UN Committee to Eliminate All Forms of Discrimination against Women holds this view, and in their recommendations on this matter, they say that States are expected to take positive steps to ensure adequate referral and care.⁷³

When the rights of patients and providers conflict, due to a conscientious objection claim, patients' needs have to be met, accommodating where possible the rights of the objector. It is evident that for the most part, the authors of the laws and policies of Peru, Mexico and Chile on the issue of conscientious objection did not have women's health and rights among their concerns, though to varying degrees.

Medical ethics gives due regard to the imbalance inherent in patient–physician relationships. Regulations governing conscientious objection should also take account of the unequal positions people occupy in society and address the risk of perpetuating social and legal inequality. Women are dependent on these services to reach the highest attainable standard of health.

Notes

* The Constitutional Court of Colombia ruling in May 2006 declared that “no abortion offence takes place when pregnancy is terminated of a woman's free will if: (i) her life or health is in danger, as certified by a physician; (ii) the fetus is malformed to the extent that it becomes nonviable, as certified by a physician; or (iii) pregnancy has resulted from a duly reported act of unconsented or abusive sexual intercourse, from unconsented artificial insemination or transfer of a fertilized ovum, or from incest”.¹⁶