Guest blog: Public Health Services and Fundamental Rights - Conscientious Objection to Abortion in Italy.

Commercial religion involves the intersection of the commercial and the religious, most notably in employment and in the provision of services. The complexities of this can be seen in particular in relation to public services which the public has a right to access. The Italian case of conscientious objection to abortion performed by state employed doctors illustrates how complex this issue is. The Italian situation has been considered at length by the European Committee of Social Rights, which in 2016 and 2014,  found Italy in breach of provisions of the European Social Charter: the right to health, alone and in conjunction with non-discrimination, the right to work and dignity at work. This blog entry briefly introduces the main themes of this complex problem.

The Law on Abortion in Italy

In Italy interruption of pregnancy is regulated by Lawno. 194 of 1978. The Law was adopted by the Italian Parliament after a decision of the Constitutional Court, delivered in 1975. The Court stated that the criminalization of abortion, when there were no other means of preventing a serious risk for women’s health, breached art. 32 of the Constitution (right to health).  

The Italian legislation on abortion is liberal, as the UN report World Abortion Policies 2013 confirms: it allows interruption of pregnancy on different grounds, depending on the stage of the gestational period. During the first trimester, a woman can have her pregnancy interrupted if there is a serious threat for her physical or mental health, for economic, social or family conditions, due to reasons related to the circumstances under which the conception occurred, or in case of foetal impairment (art. 4). After the first 90 days, abortion can take place only for therapeutic reasons, to save the women’s life or to avoid damage to her psychophysical health, in case of diagnosed pathological processes (art. 6). Where the fetus may be viable and able to survive autonomously outside the uterus, abortion is permitted only if pregnancy or childbirth constitute a serious threat for woman’s life. However, in that case doctors have to take any appropriate action to save the life of the fetus (art. 7, par. 3).    

Conscientious Objection to Abortion   

The Law on abortion also provides for conscientious objection by medical professionals (art. 9): the relevant individuals can refuse to take part in activities “specifically and necessarily aimed at procuring the interruption of the pregnancy”.

This provision is in sync with the subsequent constitutional jurisprudence, which devotes great attention to individual conscience, as shown, for example, by the case-law on conscientious objection to military service. It is also of primary importance given the supreme constitutional values at stake, in particular human life. 

The right to conscientious objection to abortion, however, is not without limits. Mechanisms are in place intended to ensure a constant and timely access to medical care for women: indeed, conscientious objection does not apply in case of urgency (art. 9, par. 5); healthcare institutes have the obligation to guarantee in any case the availability of the service in their sanitary units; Italian Regions have to control the correct implementation of the Law and, moreover, can ask medical personnel to engage in staff mobility procedures in case of a lack of staffs (art. 9, par. 4).    

Challenges Related to the Accommodation of Freedom of Conscience  

The concrete implementation of the conscience clause led to controversial effects and outcomes: through the years, the Law attracted a wide-spreading number of objections. According to the last Report on Interruptionof Pregnancy, delivered each year by the Minister of Health, in 2016 the overall number of objecting doctors in the gynecology and obstetrics departments reached the percentage of 70.7%. 

Year	OVERALL number of OBJECTING GYNECOLOGISTS in Italy
2005	58.7%
2006	69.2%
2007	70.5%
2008	71.5%
2009	70.7%
2010	69.3%
2011	69.3%
2012	69.9%
2013	70.0%
2014	70.7%

Another element makes this Italian phenomenon special: indeed, even though the Law on interruption of pregnancy applies uniformly throughout the Italian territory, the exercise of conscientious objection by Italian doctors produces a fragmented patchwork. The following graph surveys the number of healthcare institutes performing abortion in each Italian Region in 2014. Generalizing the picture, it can be affirmed that even though Italian Regions display different trends, in the South of Italy the number of objections is higher and, consequently, the healthcare institutes providing abortive services are lower.

A Complex Mix: Public Service, Fundamental Rights and Accommodation

There are many questions the Italian situation raises, such as how to make the healthcare system more effective, ensure patients’ best interest and guarantee their right to health in combination with doctors’ fundamental right to freedom of conscience. Accommodating these two rights is particularly challenging, given not only the delicate terrain in which these issues lie but also the design of the accommodation itself.  

On the one hand, patients expect to access in public facilities a range of medical services, including interruption of pregnancy. Accordingly, healthcare institutes are under the obligation to employ staff to offer adequate medical care. At the same time, individual professionals employed by state-run hospitals have the fundamental right to refuse to deliver part of those services.

This illustrates that exercising a fundamental right in the public sector is not only a matter of finding a proper balance between competing interests and rights but may also have an additional cost for the general public revenue.

Some solutions have been experimented with to address the problem, such as the use of external specialists and freelance doctors to perform interruption of pregnancies in the public clinics. In this respect, the non-profit association LucaCoscioni investigated the situation in Veneto, one of the Northeastern Regions. According to the data recorded, the cost of abortive surgeries carried out by non-employed personnel on a weekly frequency is around 3.200 € per month per gynecologist, plus the cost of the anesthesiologist (60 € per hour; 480 € per night).

However, to understand the full picture, it must be added that in Italy interruption of pregnancy in public hospitals or accredited healthcare facilities is free, while the delivery of other type of sanitary services may require citizens to pay a contribution (“ticket”), varying according to the type of medical service or personal income. By contrast, abortion-clinics.eu reports that in Austria an induced abortion, if not covered by the health insurance, costs between 300 € and 850 €, depending on where and by whom the surgery is performed (state hospitals, private clinics, private practitioners).

It seems, therefore, that the Italian abortion policy has a clear public pattern: on the one hand, interruption of pregnancy is performed only in public or accredited healthcare facilities and is free. On the other hand, doctors employed by the state have an exit-way from offering the full range of services their healthcare institutes have the obligation to provide.   

At the moment, it is not so clear how the Italian law will react to the overwhelming predominance of objections by medical professionals. It is still debated what legal solution can reasonably accommodate doctors’ conscience without impairing patients’ rights. However, it is without question that the fundamental rights and liberties involved require a careful reflection on a possible evolution.  

Guest blog by Tania Pagotto, PhD Candidate at the University Ca’Foscari of Venice (tania.pagotto@unive.it).

Cite as Tania Pagotto, “Public Health Services and Fundamental Rights: Conscientious Objection to Abortion in Italy”, in Commercial Religion, 19 June 2017 (http://commercial-religion.blogspot.com/2017/06/guest-blog-public-health-services-and.html).

Hands On Originals and Ashers Baking.

An interesting week in commercial religion.

In the United Kingdom, it has been confirmed that Ashers Baking, and the family who own it, will be taking their case to the Supreme Court, having been unsuccessful in the NI County Court and Court of Appeal. If initial arguments before the Supreme Court are accepted, the case will be heard in October 2017. The Christian Legal Institute is supporting the appeal, which it will be recalled turned on the refusal by a bakers to make a cake celebrating same-sex marriage, on the basis that to do so would be incompatible with their religious beliefs. 

Ashers raises two important issues for commercial religion, only one of which has received much in the way of discussion so far. Firstly, to what extent can claims to manifest religion under ECHR Article 9 be raised by human traders and service providers, despite their working in the commercial sphere? The NI County Court, and NI Court of Appeal, recognised that such claims can be brought, but found restrictions justified by reference to Article 9(2), and in particular the rights of others. This balancing issue is likely to remain an important part of any substantive Supreme Court hearing. Secondly, to what extent can for-profit limited liability companies claim religious rights under Article 9? The County Court very briefly dismissed this, with Brownlie J citing Kustannus Oy Vapaa and Others v Finland as evidence that "it has long been recognized in Convention jurisprudence that a limited company cannot invoke Article 9 rights" (at para.98). Kustannus does not support this, as it is clear that not for profit limited companies with religious objects are capable of invoking Article 9, but it does support the idea that a "profit-making corporate body" cannot invoke Article 9. There is not, however, a strong line of authority on this point either before Kustannus or since. The issue was not discussed at all by the Court of Appeal, and it will be interesting to see if it is developed in the Supreme Court. 

One argument put to the NICA was that Ashers and its owners would, if required to provide the decorated cake requested, be forced to speak contrary to their religious beliefs. The Canadian case of Brockie v Ontario Human Rights Commission [2002] 222 DLR (4th) 174 was discussed, but it was not seen as applying to the UK scene, and to this case in particular. A recent US case, supported by the Becket Fund, has returned to this idea of commercial provision of expressive services. On the 12th of May, in Lexington Fayette Urban County Human Rights Commission and Aaron Baker for Gay and Lesbian Services Organization v Hands On Originals Inc, the Kentucky Court of Appeals distinguished a printing service asked to print slogans on t-shirts from a bakery asked to bake a generic cake which would be used to celebrate a same-sex marriage (citing Craig v Masterpiece Cakeshop Inc, 370 P.3d 272). Kramer CJ for the Court of Appeals stressed the expressive nature of the service requested, printing t-shirts with slogans for the Lexington Pride Festival, concluding "Nothing in the fairness ordinance prohibits HOO, a private business, from engaging in viewpoint or message censorship. Thus, although the menu of services HOO provides to the public is accordingly limited, and censors certain points of view, it is the same limited menu HOO offers to every customer and is not, therefore, prohibited by the fairness ordinance". If the distinction drawn between Craig and Hands On Originals becomes important in the Supreme Court, then the icing on the cake may become more than a mere ornament to the case.