Conscientious Objection and Harm Reduction in Europe

Abstract

Conscientious objection to the provision of health care raises important philosophical and practical questions. Is it justifiable for a health care professional to act against a legal obligation on the grounds that such an action would bring her in conflict with her personal ethical beliefs and commitments? How would a health service accommodate conscientious objection without compromising the delivery of health care that is lawful, necessary, and often the result of significant political struggle? The nature and limits of conscientious objection (CO) has been much discussed in terms of a clash between public duties and personal interests. The Colombian Constitutional Court’s Decision T-388 (2009) is particularly significant as a legal precedent that intervenes in this debate by addressing the scope of any legal interest in CO and the limits on any such interest. The Court discusses these limits in light of CO’s potential to harm the legally recognized interests of third parties, including the fundamental rights of women seeking access to lawful abortion care. This chapter responds to that discussion by considering the Court’s reasoning as a contribution to a harm reduction approach to conscientious objection in abortion care. In particular, I focus on the significance of such an approach for responding to regulatory issues that are currently being debated in Europe in relation to conscientious objection and abortion care. Part 1 argues that the Court’s focus on the kind of circumstances and relationships which engage a legal right to CO points towards a prima facie need to establish that the objector will be harmed if her objection is not legally accommodated. This provides helpful guidance on the distinction between institutional and individual objectors, between direct and indirect participation, and between public and private dimensions, when it comes to deciding the legitimate scope of CO. Part 2 argues that the Court’s elaboration of the limits on the legitimate exercise of CO helps us identify a legal test for the nature and effects of harm as a limit on CO. In making this argument, I illustrate how such a harm reduction approach to CO throws light on the regulatory issues that have arisen recently in Ireland, Italy, Poland, and the UK in relation to the role of CO in abortion care.