In the face of the fourth assumption of decriminalization of abortion
Gonzalo Herranz. department of Bioethics, University of Navarra
lecture at workshop on Professional pro-life activism.
Pamplona, June 22, 1991
It seems to me that, to begin with and before dealing with the three topics on this morning's agenda, we should reflect a little on the degree scroll of today's session: in particular, on whether there is something specific in the pro-life activism of health professionals.
I think so. As I see it, there are some notable differences between pro-life activism that is determined by its location in a certain place (be it a city, a province, a region or an entire country) and that is implemented and developed by people from very different walks of life, and pro-life activism on a specific professional basis.
And, although a nurse, a lawyer, a pharmacist can, of course, participate as one more, as simple citizens, in general activism, if they do so as professionals they find that the purposes they propose, the recipients they address and the arguments they use are strongly marked by the professional.
Logically, we must make use of common moral arguments. The ethics of the health professions is not a sui generis ethics, with its own fundamental principles and decision-making procedures different from those of general ethics. It is common ethics applied to problems that are repeatedly presented to us, for which solutions have been found that we should study and apply. The characteristic feature is that the way we formulate and seek solutions to bioethical problems is necessarily marked by our own professional context, our professional deformation, of which, in addition to deontological traditions, scientific considerations and the human styles of our professions are part.
Having said these generalities, we must now move on to analyze our first topic of this morning: What pro-life activism consists of and how it can be carried out in the face of the fourth scenario of decriminalization of abortion.
I have the impression that the attitude of the socialist government, from the very moment of the promulgation of Organic Law 9/1985, was to favor the widest possible internship of abortion, by means of the simple transcript of turning a blind eye to infractions of the law. The promise of pardon to doctors convicted of abortion offenses is a convincing test that the government has no interest in applying legal restrictions to the internship of abortion. De facto, not de iure, abortion is free in Spain. And it is also a fact that the legal machinery has been set in motion to silence social resistance against abortion: the Minister of Justice is studying the reform of the procedural order to eliminate the popular action against abortion crimes, which would reduce pro-life associations to silence and leave those who reject abortion without legal recourse.
For this reason, the proposal, on the part of some ministers of the current socialist government, of the possibility of legally extending the cases of decriminalization of abortion was, to a certain extent, somewhat surprising, outside the political line followed up to now. It was certainly something circumstantial, conditioned by the publicity need not to lose face in the face of the scandal of the pardon to the abortion doctor Saénz de Santamaría. And, as a circumstantial thing that it was, it had a very short life. It certainly does not seem to be a seriously matured purpose : not a month had passed since the uproar raised by Ministers de la Cuadra and Fernández with their promise to extend the abortion law, when the new head of Health and Consumer Affairs, Julián García Valverde, declared himself against any reform of the abortion law, either in the form of a law of time limits, or through the introduction of the fourth socioeconomic assumption. He opted for the slow but efficient policy of allowing progressive consent. Any change in the Law," said García Valverde in Mallorca, "we have to consider it as a study of the future, not as an immediate thing".
"There is a law that works well and, within that legal framework , most of the problems raised by society are being solved," García Valverde then pointed out. This is the policy of the socialist government: the de facto establishment of social tolerance of abortion, subjecting the law to a regressive process of atrophy by disuse, while public awareness of abortion is being eroded. To this end, the government, through the Attorney General's Office, practices tolerance management assistant: abortions performed in an officially recognized center are presumed to be legal and, consequently, will not be investigated by the police, nor will the Public Prosecutor's Office accept complaints filed against them. Thus, the reform of the law may well be contemplated as a study of the future, not as something immediate.
However, things are moving fast and this future may come at any moment. We must count on the reappearance of a public and parliamentary discussion of the fourth supposition, and we must be prepared to face it. And we must be prepared to face up to it. How, in such a circumstance, should we approach professional activism in favor of life?
It seems to me that an important battle is that of professional ethics. What does the Code of Ethics and Medical Ethics say about the socioeconomic indication of abortion? The Code reaffirms, in different articles, the obligation to respect human life, since this is one of the physician's primary duties. It states that it is not deontological to admit the existence of a period in which human life has no value, so the physician is obliged to respect it from its beginning. And it establishes that the embryofetal human being should be treated agreement with the same ethical guidelines that inspire diagnosis, prevention, therapy and research applied to other patients.
He also points out that, in spite of all this, the physician who, within the law, acts contrary to this principle will not be sanctioned.
It is curious. The Code does not give an inch in the area of principles. It says that respect for life comes before all other duties of the physician, for that is the first among the physician's primary duties. Where other duties may conflict with that of respecting human life, none may take precedence over it. According to the Code, it is as unethical not to respect prenatal life as it is not to respect the life of a child or an adult. Before the human embryo and the human fetus, before the human embryo and the human fetus, the physician can only place himself as the one who, with science and compassion, cures their diseases and prevents them.
But the Code gives way on the ground of the internship: crushed by the physical force of the Law, it will not sanction the physician who performs abortion within the law.
The current status , that of the restrictive law and factual tolerance, is painful, tragic, manager of the undetermined issue (60,000?, 80,000?) of abortions that, for the last three years, have been performed annually in Spain. The Social Security hospitals participate in this hecatomb at Degree minimum. Abortion practices are in fact carried out in a small issue of private clinics dedicated exclusively to the abortion and sterilization trade, although some municipal family planning centers support them from afar. But within the current status it is comforting to know that in the vast majority of public hospitals and private institutions the notion remains intact among physicians that illegal abortion - which is equivalent to abortion practiced outside any medical indication - is a matter that has nothing to do with real medicine, it is the medicalization of a desire.
Will this way of seeing things persist if the Government manages to get Parliament to sanction the inclusion of the socioeconomic indication in Organic Law 9/1985? The indication partner-economic will be presented as a step forward in the process of identification with Europe, as a question of social justice and ethical maturity, as a conquest of the woman's right to decide. But I am sure that there will be no talk about what this modification of the law means for health professionals who refuse abortion.
Because I am sure that the new indication will be based on the legal precedents of the European countries around us. And if that is done, the loss of freedom that these professionals will suffer will be tremendous.
Let's look at it in some detail. Abortion laws that include the socioeconomic indication are terribly fallacious. They are not presented as instruments for the destruction of human life, but for the protection of maternity and prenatal life. They involve the physician, they say, as the protector of life and health, and they are entrusted with the custody of the pregnancy and the health of the mother and child. The woman who is considering abortion must be informed of the opportunities that society offers her to continue her pregnancy: of the financial assistance she can receive if she carries her pregnancy to term, and of the possibilities of adoption. They should invite her to think about it for a few days, so that she can make her final decision thoughtfully and without haste. But this task of information and committee comes at an enormous moral price. The doctor must ultimately bow to the woman's will: he must himself perform the abortion requested of him, or, if he refuses to perform the procedure, he is obliged at least to refer her to a colleague or a center that will perform the abortion.
These abortion laws destroy a crucially important part of professional ethics. Because the laws that respond to this outline (those of Italy, above all, but also those of France and Federal Germany) unjustly detach physicians from their basic duty to respect human life, and at the same time expropriate them of a critically decisive fraction of their professional independence. Such laws create an ethical space within which it is impossible to act freely and manager, since the physician who respects human life is forced, at best, to initiate actions, the foreseeable results of which contradict his professional duties and ethical convictions. These laws constitute an alienating structure of professional freedom - in fact, to put it simply, they are a structure of sin - with which physicians and medical-social institutions that respect human life cannot collaborate. There is a solid deontological basis for this rejection.
It is deontologically unacceptable to derogate by law from the duty to respect human life from its beginning, and to invoke a partner-economic reason for this. This duty belongs to the essential core of the deontology of the health professions. Its abrogation, even partial, means radically changing the aims of these professions. The most recent versions of the Codes of Ethics of the countries that concern us, with the exception of that of Italy which, on this point, sample has a very lukewarm attitude, continue, in spite of legislation tolerant of abortion, to impose this fundamental rule on doctors and nurses.
Thus, for example, the Code of Ethics of the German Medical Association (1988), "It is the physician's duty to sustain life, to protect and restore health, and to alleviate suffering". And, further on, it states that "The physician has the fundamental duty to respect unborn life". And in the Promise required of all physicians, the physician promises "I will respect all human life from conception and will never, even under threat, employ my medical art against humanitarian precepts". The Code of Deontology of the Order of Physicians of France states that "The physician, in the service of the individual and of public health, exercises his mission statement in respect for life and the human person". And the official Commentaries to the Code state that "it is a tradition that respect for life must be shown from its very beginning".
Without exception, the Codes state, even knowing that these laws have repealed the disciplinary action against abortion, that it is in accordance with professional ethics for physicians to abstain from participating in abortion. The ethical dignity of physician abstention from abortion thus appears in these normative documents. The German Code states that "The termination of pregnancy must be carried out in accordance with the legal regulations. No physician may be compelled to take part in a termination of pregnancy". The French Code states, for its part, that "The physician may perform a termination of pregnancy only in the cases and under the conditions provided for by law. He may always freely refuse to comply with a request for a voluntary termination of pregnancy".
We cannot forget that it is the inalienable duty of health professionals to make their decisions in a context of freedom. Independence is a highly esteemed and non-negotiable professional duty, which receives special honor in the Codes of Nursing Ethics. The German Code of Ethics states: "The medical vocation is not a employment. It is by its very nature a free profession. The profession of a physician requires that he performs his duties according to his conscience and agreement with the commandments of medical ethics". The French Code provides that "The physician may not in any way alienate his professional independence". The Italian Code could not be more eloquent on the subject. In the first clause of the Oath that physicians must take and which precedes the articulated text of the Codice, the physician swears "to practice medicine in freedom and independence of judgment and behavior". And in the articulated text, he emphasizes that "The practice of medicine is founded on freedom and professional independence, which constitute an inalienable right of the physician." "In the practice of the profession, the physician must be constantly inspired by scientific knowledge and his own conscience, assuming as core value the respect for life and the human person. He must not submit to interests, impositions or threats of any kind".
Despite all the ethical richness of these ethical texts, and despite the fact that all abortion laws recognize the physician's right to conscientious objection, these laws necessarily destroy, as I pointed out earlier and will show below, and inevitably so, an important and critically decisive part of the physician's freedom and independence. For, by granting the woman the de facto right to have an abortion, they impose on the physician certain reciprocal duties limiting his freedom. In legislation regulating socioeconomic indications, the physician is forced, at the very least, to provide information or to carry out certain administrative gestures which, besides being morally repugnant, are alien to medicine, since they are not based on medical reasons and motives, but on extra-medical social and economic conditioning factors.
Once the physician participates in any of the actions that are part of the procedure established in that legislation, it is inevitable that he/she will be dragged into a certain moral cooperation to abortion. Even the physician who would enter the circle of the law with the exclusive (and laudable) purpose of dissuading as many women as possible from abortion issue , would be coerced by two forces that drag him or her into cooperating in abortion.
One of these forces is legal. The law is imposed on the physician as a whole. If the physician objects to it in its entirety, he will be able to escape its influence, although not always. But if he does not object, with the purpose of saving the greatest possible issue of human lives, he cannot abstain from some of its prescriptions. These laws do not allow simultaneous participation in certain preliminary levels of the procedure with abstention from later ones. This unitary character establishes a dilemma of exorbitant moral cost: either the physician closes himself to the law in a conscientious objection to its totality, or he accepts it without reservation.
In fact, the abortion laws, although with different modalities, articulate a continuity between the first conversation of information and committee and the subsequent phases of abortion. This establishes a continuity that severely limits the professional freedom of the physician. In Germany, the status seems less aggressive of the physician's freedom, since the physician can certify that, in his or her opinion, the requirements criteria for an abortion for medical indication are not met: all the more so since the same law penalizes the physician who certifies falsely. It is to be expected that a "negative" certificate may in fact prevent, or at least not authorize, the performance of the abortion. On the other hand, it has become customary for the physician to refrain from providing the written certificate stating that, in the women who have consulted him, the medical indications for abortion are given. However, the lack of certificate can be replaced by the testimony staff of the woman who claims to have had the prescribed conversation with the counselor, or by a telephone call to confirm that the procedure has been carried out. submit In France, according to the Code de la Santé publique, the physician to whom the woman applies for an abortion is obliged in all cases - that is, even if he is an objector - to provide the woman, as early as the first visit, with an informative dossier, updated at least once a year, which must include, among other information, the list and addresses of the establishments where voluntary terminations of pregnancy are performed. This is terribly compromising information that a doctor who respects life can only give against his conscience. The physician is used here as a vector of a social action, not a medical one, and as an accomplice in the pursuit of the abortion plan. If there are no "medical reasons" for the abortion, the physician must remain free of any participation in the abortion indication phase.
In Italy, status is particularly detrimental to professional independence, because, even outside the emergency status , the doctor to whom the woman requests the abortion is obliged by Law 194/1978, first of all, to issue a document attesting that the woman is pregnant and that she has requested the abortion, a document from which the doctor's professional and deontological opinion on the case is excluded. But, in addition, the reluctant physician is necessarily excluded from any activity leading to the indication or non-indication of abortion. staff Indeed, although the law states that conscientious objection exonerates the health care provider "from carrying out the procedures and activities specifically and necessarily aimed at causing the termination of the pregnancy", this abstention is understood as a whole, it is indivisible. The physician is not allowed to participate in the phase of committee and selectively abstain from the execution phase at the same time, since the same law establishes that "the conscientious objection is understood to be revoked, with immediate effect, if the person who has filed it takes part in the procedures or interventions leading to the termination of pregnancy provided for in the present law".
It is curious that this discrimination, whereby objecting physicians are exiled from any participation in the assessment of legal indications for abortion, takes place at a time when discrimination among physicians has been vigorously condemned. The World Medical Association ( association ) adopted in Brussels in 1985 a Declaration on Human Rights and Individual Freedom of Physicians, in which it proclaims: "The World Medical Association ( association ) is in favor of equality of opportunity in the activities of medical societies, the Education and the training, the employment and all other aspects of the medical profession, to the exclusion of any discrimination based on race, color, religion, political belief, membership ethnicity, national origin, sex, or age. The World Medical Association association calls upon the medical profession and all members of National Medical Associations to make every effort to eliminate instances and situations where such equality of rights, privileges and responsibilities is denied".
The other force that deprives the physician of freedom is the perversion of a professional rule. The relationship initiated by the physician with the woman requesting the abortion becomes, in the context created by the law, the first act that cannot be dissociated from the successive acts by virtue of the obligation of continuity of care. Once the informative conversation about the request for abortion has been accepted, it is not possible, within the law, to end it with the doctor's refusal to give effect to the woman's wish to have an abortion, since he is obliged to give her the document which, once the law stipulated by deadline has elapsed, accredits her to obtain the abortion. The law does not include the possibility of breaking off the relationship initiated in such a way as to cancel its further effects.
In other words, the law appropriates here and applies to the woman who demands the abortion what the Codes of Ethics establish about a very different circumstance: the one that occurs when the physician breaks off his professional relationship with a sick person in immediate need of medical care. The physician must then ensure that another colleague guarantees the continuity of medical care to the person who needs it, which is very different from indulging a desire that has been artificially medicalized by law.
The Codes of Ethics point out the ethical legality of the suspension of the doctor-patient relationship (as occurs when, for example, the necessary mutual trust is lacking or when there is a firm disagreement about what should be done), and establish that the physician must then cooperate in the search for a colleague to replace him, to be informed of the appropriate medical data . Thus, for example, the Italian Code states that "Whenever he is asked to perform medical interventions that go against his conscience or his clinical convictions, the physician may refuse to provide care, unless it is immediately necessary to save the patient's life. When required on a case-by-case basis and subject to respect for professional secrecy, the physician has the duty, in the exclusive interest of the patient, to make available to the patient himself or to the physician or institution indicated by the patient, the clinical documentation in his possession."
Up to this point, the excursion through the harsh deontological landscape of the countries around us. In my opinion, two conclusions can be drawn from it, which are very enlightening in the face of the threat of the fourth legal indication of abortion:
a) the abortion laws, in their current state, seriously violate certain very significant ethical standards, and b) the abortion laws, in their current state, seriously violate certain very significant ethical standards.
b) there is a deontological legitimacy for the rejection of these laws or, at least, for basing the physician's non-partnership with these laws as very much in accordance with professional dignity.
From the point of view of pro-life activism, I believe that the refusal to participate in the prior consultative phase, foreseen in these laws, has a better deontological basis and is a better solution than the contrary attitude. Furthermore, such participation contributes to perpetuating the unsatisfactory status that exists in the countries around us. In this regard, purpose, it should be borne in mind that the participatory stance, along with certain admirable aspects and motivations, has a weak flank.
The principle of professional responsibility imposes on the physician the burden of assuming the foreseeable consequences of his actions. On the professional level, the acceptance of the preliminary interview and submission of the corresponding accreditation document cannot be separated from its subsequent consequences, which are known to the physician, but over which he/she has no control. This is a high psychological risk status because, with the passage of time, the physician will gradually adapt to the abortion ethos of the law. The initial firm, firm and dissuasive attitude may end up cohabiting in the physician's soul with the acceptance that abortion cannot be absolutely rejected. For, in addition to being a legal alternative, accepted, even by a majority, in advanced societies, it is an extreme resource , very hard but understandable, to which, forced by very cruel social circumstances, people who lack the capacity to be heroes or saints, but who are morally sensitive and who suffer in the face of abortion, and whom it would be unjust to condemn, come, forced by very cruel social circumstances. This opens the way to the disblame of some abortions. It is also inevitable that, as many unsuccessful attempts at dissuasion are added together, a tolerant habituation will develop in the physician, which is made up of psychological fatigue and moral resignation, and which robs him of the energy to continue the struggle.
From a professional point of view, the submission of the report in which the physician states that he has discussed with the woman the application of abortion symbolizes, in a certain way, the submission of the physician to the system. The physician is a necessary link in a chain that often ends in the destruction of an innocent person.
Ideally, the solution, for us, has to come from the firm civil service examination to the extension of the abortion law and efforts to repeal the existing one. We are obliged not to allow the social wound of abortion to close. In that, we have much to learn from American pro-life activism. We must avoid at all costs the possibility of regulating, by de facto or administrative measures, discrimination against health professionals who do not cooperate with abortion and, through jurisprudence, making the conditions under which they have to work more difficult or impossible. In all societies with permissive legislation, the terms in which the law is applied or interpreted tend to be radicalized, leading to increasing discrimination against objecting physicians.
Discrimination against physicians who oppose abortion is blatant. This has been going on since before the enactment of the permissive laws. Today, in jurisprudence and in political action, there is a tendency to adopt very radical positions in favor of abortion, to the detriment of objecting physicians. Such positions often reach levels of irrationality. For example: the liberal and progressive Supreme Court of the United States declared unconstitutional certain provisions, both of public agencies and of lower Courts, which required that women requesting abortion be given certain information (the name of the physician who was to perform the abortive operation; the statement that the unborn child is a human life from the moment of conception; a description of the anatomical and physical characteristics of the unborn child; a statement that the unborn child is a human life from the moment of conception; a statement that the unborn child is a human life from the moment of conception; and a statement that the unborn child is a human life from the moment of conception; a description of the anatomical characteristics of the fetus at the same gestational age as the one to be aborted; an enumeration of the medical risks involved in both abortion and continued gestation and delivery; and a presentation of alternatives to abortion, such as adoption) or that the woman requesting the abortion be advised or encouraged to forego it when it is not necessary to save her life. The Supreme Court described such information as a "parade of atrocities" capable of causing confusion, anxiety and even physical pain to a woman who had already decided to have an abortion.
Not only is the obligation to inform in order to decide freely and consciously destroyed. The right conferred on the woman to do what she freely wishes with her body, annuls the moral and professional personality of the physician. Any information that could induce the woman to change her mind is declared an attack on her privacy. These judgments, so strongly charged with obscurantism and harsh paternalism, come, it must not be forgotten, from the same Court that has consecrated free and informed consent as an essential element of the doctor-patient relationship.
We must look for solutions in time. We must multiply the places where health professionals can give advice with skill and respect for life, without this professional act being instrumentalized to destroy innocent lives.
When the reason invoked by the woman for the abortion is not specifically medical, apply for , non-medical counselors can perform an extraordinarily effective task. Physicians have more specific roles to play. Catholic obstetricians and geneticists must have access to competent and advanced systems of prenatal diagnosis that are truly at the service of the unborn child, to cure or alleviate congenital disease. Prenatal diagnosis in all its forms must be associated with a genetic committee that, with respect for life and for the freedom and responsibility of the parents, contributes to forming in them the act of faith to accept and care for the handicapped child. It is necessary to overcome the falsehood, imposed by the dominant utilitarianism, that the prenatal committee must be non-directive, morally neutral. But this, apart from being an impossible pretension (to be absolutely impartial, in ethics, it is necessary to be totally ignorant or stupidly indifferent), is, from the professional point of view, an incongruity: parents go to the doctor not to receive an objective exhibition of Biochemistry from development, but to be advised and to be strengthened. The same can be said of the role of psychiatrists, internists or pediatricians.
At the same time, and with this I conclude, I recommend an effective form of professional activism in favor of life. It is necessary, because it is of decisive importance, to participate in the life and decisions of the professional associations. These bodies are privileged places to defend the deontological rights and freedoms of each profession and to initiate the reconquest of the rights and freedoms that have been expropriated from them.