The misrepresentation of conscientious objection as a new strategy of resistance to abortion decriminalisation

In Latin America, a region where abortion is highly restricted, activism in sexual and reproductive rights has managed to advance a progressive agenda in various fields, although these conquests are receding in some contexts. In Chilean history, abortion for therapeutic reasons was allowed until 1989, when a complete ban on abortion was established at the end of the military regime. It was not until August 2017, 23 years after the return of democracy, that Congress decriminalised abortion on three grounds: risk to the life of the pregnant woman, rape, and cases where the foetus is non-viable.¹ The law opened a strong debate about the scope and eligibility for the right to conscientious objection, not only for an individual, but also on an institutional basis. When initially approved by Congress, the bill only included the right to individual conscientious objection for the surgeon who would perform the abortion and the rest of the professional staff present in the surgical ward during the intervention. It prohibited institutional conscientious objection: “Conscientious objection is of a personal nature and in no case may it be invoked by an institution”.² However, before publication of the law in 2017, the terms were modified by the Constitutional Court to recognise institutional conscientious objection. The right to object was also extended to non-professional health personnel working in the surgical ward. Moreover, the Constitutional Court eliminated, without explanation, the rule that prevented the objector from excusing himself or herself in cases of imminent expiration of the established deadline in the event of rape, and only maintained the exception in the event that the woman's life was at risk and requiring imminent and unpostponable care.³

According to the Constitutional Court ruling, the invocation of conscientious objection by institutions is based not only on recognition of the confessional tenets of religious institutions or legal entities protected under the freedom of conscience and religion clause (Article 19 N°6 of the Constitution), but also on the freedom granted to educational establishments that hold those ideals (Article 19 N°11), on the right to freedom of association (Article 19 N°15), and on the protection of the autonomy of intermediate groups (Article 1 N°3).⁴ An intermediate group is any formal or informal association of individuals, the word “intermediate” alluding to the position these groups occupy between the individual and the State. The protection of intermediate groups under Article 1 has a history associated with the Chilean dictatorship, under which the Pinochet regime enacted a neoliberal Constitution in reaction to what was understood as the threat of a Marxist totalitarian State. The protection of intermediate groups, together with the doctrine of the subsidiary State, gave a strong guarantee of economic freedoms and the protection of property rights, which boosted the development of private medicine. This led to a radical change in the way of thinking about health in Chile, which is captured, to an important extent, by a market-oriented logic. A second decision of the Constitutional Court on conscientious objection, issued in January of 2019, made this explicit: “ … the current Constitution does not give the State a ‘preferent’ role in the provision of health care services, but entrusts this operation to ‘public and private institutions’”⁵ (internal quotations in the original). The Court quoted the records of the advisory commission that drafted the Constitution and stated that “in this field the principle of the subsidiarity of the State also applies”.⁵

Under this logic, law professors have argued that private gynaeco-obstetric health institutions can refuse to perform abortions, just as surgeons are free to offer or deny gastric sleeve surgery or kidney stone treatments in their practice.⁶ Using this argument, right-wing Congress members challenged the prohibition on invoking conscientious objection which the Ministry of Health imposed on private health institutions that (a) held agreements with the State and (b) received public funds to provide gynaeco-obstetric services to public health beneficiaries. The Court stated that under the Constitution private health institutions are free to choose which services to offer without needing to resort to conscientious objection, and ruled that the right to institutional conscientious objection is applicable to private facilities holding State contracts.⁵ Herein emerges the first problem in not offering a service: how to distinguish the scenario of conscientious objection, (which should be kept as exceptional and regulated) from the scenario that simply appeals to freedom of association or business.

A second argument is what has been colloquially referred to in Chile as “technical conscientious objection”,⁷ which is not based on religious, moral or philosophical reasons, but on an alleged application of professional judgment. The Constitutional Court in its 2017 decision stated that “conscientious objection (…) should be understood as protected by the dignity of persons who - individually or projected in their association with others - refuse to practice certain types of actions (interruption of pregnancy) for ethical, moral, religious, professional, or other relevant reasons”³ (our emphasis) which makes room for a broad and worrying understanding of conscientious objection. As an example, we analyse a paper published in Revista Médica de Chile in 2016 by Dr. Besio, an influential gynaecologist-obstetrician and, at the time, a member of the bioethical unit of the Catholic University of Chile's Faculty of Medicine, the ethics department of the Chilean Medical Association, and the ethics commission of the Chilean Society of Obstetrics and Gynaecology.⁸ Besio states that conscientious objection should not be understood as grounded in personal or subjective moral reasons, but in the preservation of professional integrity. He builds his argument on his reading of Article 20 of the Code of Professional Ethics, which states that physicians may refuse to provide services that go against their conscience or their clinical conviction. This preserves the right of doctors to act upon their clinical assessment of a patient's condition. According to Besio, what the doctor does when refusing to perform an abortion is to reinforce professional ethics. A doctor can refuse a service when he or she judges that the risks are too high or if the intervention is disproportionate. The doctor can object in these cases because he or she should look out for the patient's best interests and try not to harm the patient, “which could be considered technical reasons, but under closer examination would rather qualify as ethical reasons”.⁸

The danger of this argument, which has also been used by a former Minister of Health during a public lecture,⁷ is that it conflates the rationale of an old and necessary rule present in codes of medical ethics—that doctors are not obliged to perform treatments that they consider not clinically appropriate or beneficial for the patient, with the very different justification of conscientious objection as an exceptional reason not to provide services. However, this principle is not intended as a right for the doctor to impose his or her moral positions on those of his patient. What worries us here is the disguising of moral judgements under professional labels. This is the first time that the argument appears in the region and has not yet been included in the agenda of meetings in which Latin American activists discuss strategies to face the challenges of the conscientious objection argument.^9,10

Besio is using a similar argument as the one Alta Charo had criticised lucidly some years earlier. Charo stated that some health providers make a distinction between “medical care”, and “non-medical care which uses medical services”. In medical care, the argument is that there should be no conscientious objection because the refusal of care would in any circumstance be contrary to the rules of the profession. However, the category of non-medical care refers to “lifestyle choices” such as contraception, abortion, in-vitro fertilisation, sex reassignment surgery, among others, which are not treatments for diseases. The problem is that doctors have a monopoly over these non-medical services. “Claiming an unfettered right to personal autonomy while holding monopolistic control over a public good constitutes an abuse of the public trust — all the worse if it is not in fact a personal act of conscience but, rather, an attempt at cultural conquest”.¹¹

Besio's argument is even extended to the act of patient referral: “[I]t would not make sense to send that patient to a colleague who does cause the patient harm, it would be similar to causing the harm himself”.⁸ This position adopts an absolutist conception of conscientious objection which would be incompatible with professional ethical standards.^12,13

Practising medicine necessarily involves making value judgments.¹⁴ The physician is an independent moral agent with the ability and the right to express his or her objections, be they medical or ethical. If true medical care means something, however, it should include the fundamental ethical requirement that the doctor's personal moral beliefs are presented as such, and not as if they were representative of the ethical standards of the profession or a mere application of what is considered a technically appropriate treatment in clinical practice. Bioethics literature distinguishes conscientious objection from other grounds of refusals of medical services.^12,15 Insofar as refusals are based on a provider's understanding of professional norms and standards, rather than on his or her personal ethical or religious beliefs, they do not qualify as conscience-based refusals.¹²

The implementation of abortion laws around the world is suffering setbacks due to these ways of interpreting the work of health professionals. What happens in Chile is likely to influence sexual and reproductive health policies in the rest of Latin America. Although the arguments we criticise in this paper may seem unsound, we should not underestimate their impact within political, medical and legal circuits and their capacity to propagate throughout the Region, especially at a time when right-wing, conservative governments that promote the privatisation of healthcare and religious privileges are gaining ground.

ORCID

Verónica Undurraga http://orcid.org/0000-0002-3429-521X

Michelle Sadler http://orcid.org/0000-0002-3895-047X