Monday 19 June 2017

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).



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