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
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).
