Ethical and Legal Considerations on Abortion
Gonzalo Herranz, department of Bioethics, University of Navarra
Session at the conference de Ética Médica, high school Oficial de Médicos de Segovia and the Nicomedes García Gómez Foundation.
Segovia, 20 October 1995, 7.30 p.m.
Greetings
1. Abortion, topic hot and divisive
2. Permissive abortion legislation
3. The tolerant judicial internship
4. The new project de Ley on the regulation of the Voluntary Interruption of Pregnancy
5. The post-permissive deontological rule
6. The scientific instructions of the professional civil service examination to abortion
7. Conscientious objection to abortion internship
8. Legal and deontological regulation of conscientious objection
9. Institutional conscientious objection
1. Abortion, topic hot and divisive
It is not worth spending many minutes pondering the interest and importance of topic that we are about to consider. The consideration of the moral, legal, psychological aspects of abortion divides people, pits them against each other, inflames controversy. It is a topic charged with ethical and political electricity, not easy to treat coldly. The reason is simple: it is an ideological conflict that does not admit of compromise, a problem for which there is no way out average. In discussing abortion we are discussing ourselves. We have to answer the question of whether we are all created equal, whether liberated sexual behaviour is a non-negotiable achievement, whether its consequences must be accepted even at the cost of sacrificing other hitherto fundamental values. The ethics and legality of abortion put to test the coherence of our personal convictions and our identity as medical professionals.
The topic is compromised. It cannot be presented to everyone's liking because, I insist, we have all taken sides on it. It is not possible to treat it indifferently. I cannot do so by letting go of my convictions. I follow the Hippocratic and Christian tradition, which considers the deliberate destruction of the unborn human being to be contrary to professional ethos and morality.
I think, however, that my position does not prevent me from presenting the most relevant information on some legal and ethical aspects of abortion: to begin with, I will describe the current legislation on abortion, the Government's measures and the judicial internship , to then consider the project Law on the Regulation of the Voluntary Interruption of Pregnancy that the Government has sent to Parliament in order to fill in the cycle of legal tolerance of abortion in Spain. I will then go on to discuss the consequences of the legislation for the deontological-professional rules and regulations and the ethical resources that allow the ethical tradition of respect for prenatal life to survive. This will lead me to speak at some length about conscientious objection to abortion, topic especially topical given the veiled threats contained in the aforementioned law project .
I hope all this will help us to start a calm dialogue on this hot and divisive topic .
2. Permissive abortion legislation
We find ourselves in Spain in a fluid legislative status . The Organic Law of 5 July 1985, which reformed the Penal Code and introduced, in the new article 417 bis, the decriminalisation of abortion in certain circumstances, is still in force. It is useful to remember the current legal text. It reads as follows:
"Abortion performed by or under the direction of a doctor in an accredited public or private health centre or establishment, with the express consent of the pregnant woman, shall not be punishable when any of the following circumstances apply:
1st. That it is necessary to avoid a serious risk to the life or physical or psychological health of the pregnant woman and that this is stated in an opinion issued prior to the intervention by a physician of the corresponding specialization program , other than the one by whom or under whose direction the abortion is performed.
In urgent cases of vital risk to the pregnant woman, the opinion and express consent may be dispensed with.
2ª. That the pregnancy is the consequence of an act constituting the crime of rape of article 429, provided that the abortion is carried out within the first twelve weeks of gestation and that the aforementioned act has been denounced.
3ª. That it is presumed that the foetus will be born with serious physical or mental disabilities, provided that the abortion is carried out within the first twenty-two weeks of gestation and that the opinion, expressed prior to the abortion, is issued by two specialists from a public or private health centre or establishment, accredited for this purpose, and different from the one by whom or under whose direction the abortion is carried out.
2. In the cases foreseen in the previous issue , the conduct of the pregnant woman shall not be punishable even if the internship abortion is not performed in an accredited public or private centre or establishment, or if the required medical opinions have not been issued.
It is obviously a first generation law, with clear indications, which must be assured by means of certifications from competent and truthful doctors, with serious diagnostic support. It could not be less, as Constitutional Court Ruling 53/1983 demanded the verification of the factual assumption, in cases of therapeutic and eugenic abortion, and the fulfilment by the State of its duty to guarantee that the abortion was carried out within the limits established by the legislator and in the appropriate medical conditions to safeguard the woman's right to life and health. These mandates of the Constitutional Court continued to inspire, albeit more weakly, Royal Decree 2409/1986 on the requirements required of accredited health centres and the mandatory opinions for the internship of abortion. The weakening of the Constitutional mandates is patent: the Royal Decree now speaks of voluntary termination of pregnancy, which is incompatible with the ruling of 1983; the priority of the right to life of the nasciturus as a logical and ontological prius for the existence and specification of the other rights is obscured; the notion that the conceived, that tertium existentially distinct from the mother, has its own life, which constitutes a legal good whose protection is based on no less than article 15 of our Magna Carta, is blurred.
In fact, since the Law came into force entrance there has been an increase in the annual number of abortions, as shown by the data published by the Ministry of Health and Consumption in compliance with the Order of 16 June 1986. It is a common feeling that not all abortions carried out in accordance with Law 9/1985 are notified to the health authority. The magazine Tribuna, on the 9th of last year, indicated that, for fiscal or other reasons subject, only one third of the abortions performed are reported. The available data put, in recent years, the number of abortions issue stabilised at around 45,000. Particularly striking is the tremendous asymmetry between the issue number of abortions carried out in hospitals - the logical place to evaluate and attend to cases of therapeutic and eugenic indications - and those carried out in private clinics. The former barely reaches a thousand, which is less than 3%. In an interpellation in the congress to the Minister of Health to confirm and give an explanation of these data, Mr. Griñán said that these figures resulted from the data communicated to the Ministry by the autonomous governments and that the information required by law did not include data that could explain the massive public preference for private clinics.
Such an evolution, however, would not have been possible without a programmed policy of judicial tolerance.
3. The tolerant judicial internship
From the very beginning, and despite the restrictive nature of the law and the demanding criteria for decriminalisation imposed by the Constitutional Court's ruling, the tolerant attitude of the judicial authority towards possible infringements of the law was clear.
As with all laws, prudence allows each individual judge a certain latitude, restrictive or permissive, in the interpretation of the legal text: it is possible, to begin with, that the judge considers the decriminalising will of the legislator to be decisive in order to resolve cases of doubt in favour of the new permissive attitude.
It should also be considered that it is sufficient to comply with the imposed requirements - for example, the opinions issued by doctors about the seriousness of the danger to the life or physical or psychological health of the pregnant woman - in a mechanical way, as a bureaucratic procedure to be fulfilled, not as a serious clinical decision that must be based and objectified in data and considerations congruent with the biological and legal gravity that the destruction of an unborn human being demands.
The judiciary may consider any action taken to repress violations of the law to be futile when, as has happened here, the executive proclaims its decision not to prosecute or pardon doctors convicted of breaking the law by a court judgement. Indeed, it should not be forgotten that judicial passivity in the face of marginally illegal abortions was established as an official criterion, shortly after the law was passed, following the sending of a circular letter by the State Attorney General to the Public Prosecutors in which he indicated that the fact that the abortion had been performed in a centre recognised for this purpose meant that it was fully presumed to be legal, so that, in principle, criminal complaints against abortions performed in such centres should not be admitted for prosecution. The administrative requirement thus becomes a guarantee of legality and creates in private establishments, the so-called abortion clinics, a comforting sense of impunity. In fact, the only condition that has to be fulfilled to obtain an abortion is the price to be paid: all the other requirements conditions are met by the establishment that takes care of the paperwork and the operation.
The security of not being persecuted is reinforced by the government's granting of pardon to doctors who have been judicially condemned for having performed abortions under conditions not permitted by law. We all remember how the committee de Ministros granted pardon to two doctors whose conduct had been judged to be seriously illegal by the Supreme Court. And we also remember how the then Vice-President of the Government declared to the media on speech the Government's purpose to systematically grant pardon to any doctor convicted on such grounds.
Under the influence of the circumstances listed above, in the course of very few years, Spain, with a restrictive first generation abortion law, is among the 17 countries in the world where accessibility to abortion is at its highest. This is stated in a 1992 report on Progress Towards Population Stabilisation, published by the Washington Population committee , which jointly evaluates the legal status of abortion and the existence of safe abortion services in the different countries. The report makes clear that, in many places, access to safe abortion depends less on the legal status of abortion than on the issue of appropriately trained and willing providers, and the level of government tolerance or intervention.
In Spain, over the ten years since the decriminalisation of abortion, the only court convictions of doctors for performing abortions have been in a few, very few, cases of blatant incompetence in which the doctor had caused the pregnant woman serious injury or even death.
4. The new project de Ley on the regulation of the Voluntary Interruption of Pregnancy
In order to fulfil certain electoral promises and under pressure from certain groups, especially feminist groups, present in different social strata and in different political forces, the government has prepared a draft bill which has been sent to congress de los Diputados. Everything seems to indicate that, because some parliamentary groups have activated some of the parliamentary rules of procedure, the project bill will not be discussed and voted on in the current legislative period.
It is worth considering for a moment, however, the differences between the project and the current status legislation:
a) The new legal regulation of abortion will not form part of the new Penal Code: it will be an independent law to be called the Organic Law on the Regulation of the Voluntary Interruption of Pregnancy. In the Penal Code, a symbolic residue of legislation on punishable abortion persists in Book II (Crimes and their Punishments), degree scroll II (Abortion), which includes three articles. One condemns anyone who performs an abortion against the woman's will, or with her consent if it was obtained by violence, threat or deception; another condemns anyone who performs an abortion with the woman's consent, but outside the cases permitted by law; and the last condemns anyone who, through gross negligence, causes an abortion.
b) To the second indication, which is now stated as pregnancy resulting not from a crime of rape but from a crime against sexual freedom, is added the termination of pregnancy resulting from non-consensual artificial insemination, a circumstance that seems rather far-fetched, given its exotic, twisted and improbable nature.
c) A very important new feature is the voluntary termination of pregnancy, which the woman can request from the doctor when she considers that the continuation of the pregnancy would cause her a conflict staff, family or social conflict of a similar seriousness to any of those that have been decriminalised until now, provided that the following conditions and circumstances are met requirements
(i) before 12 weeks' gestation.
ii) that the woman has previously visited an accredited attendance and counselling centre.
iii) that the woman has obtained a certificate stating that she has been informed of the State's reasons for protecting her life, of the possible assistance available and of the legal and medical aspects of the intervention. And finally,
iv) who, after due advice and information, has allowed a minimum of three days to elapse deadline in order to mature his decision final.
d) The project introduces the notions of voluntary termination of pregnancy that does not involve high risk and that involves high risk, and defines the conditions to be met by public or private health centres or establishments where it can be carried out.
e) project regulates the provision of attendance by staff medical and health care. The article 3 of the project reads as follows: In the event that the internship of the termination of pregnancy is urgent due to the existence of vital risk to the pregnant woman, all doctors specialised in Obstetrics and Gynaecology integrated in a public or private health centre, as well as all the nursing or auxiliary staff , will be obliged to provide the pregnant woman with the attendance necessary to save her life, without being able to adduce reasons of conscience to exempt themselves from the responsibility they may incur at degree scroll for the refusal of assistance. Nor may such reasons be invoked by the medical and health staff to justify the refusal of attendance to a woman whose life or health is in serious danger as a result of a termination of her pregnancy.
f) The following articles of project regulate the function of the attendance and counselling centres, establish the annual publication of the list of centres and establishments accredited for the internship of abortion and of centres authorised to carry out counselling and information functions, impose rules for the statistical register of consultations and interventions, which must be reported annually to the Ministry of Health and Consumer Affairs, and, finally, declare that the voluntary interruption of pregnancy carried out due to personal, family or social conflicts will not constitute a National Health System benefit.
These are the basic contents of the project law. The legislator himself cannot hide the enormous structural and theoretical weaknesses it contains. In order to keep up appearances and not to expose the strong divergence that many of its novelties present in relation to the Constitutional Court's ruling, we are faced with an important organic law that lacks a preamble, that is, a law that does not want to or cannot justify itself or establish its relationship with the rest of the legal system.
The fourth indication, partner-economic, of decriminalised abortion is, as is well known, the main novelty. There is no longer talk of abortion. The term "voluntary termination of pregnancy" is used, with some success, to imply that the woman's free decision is a decisive and sufficient reason to end the life of the unborn child.
Many authoritative voices have argued about the possible unconstitutionality in Spain of the voluntary termination of pregnancy for partner-economic reasons. In order to be on the safe side and to bring the new fourth indication in line with the three previous ones, legitimised by the ruling handed down by the Constitutional Court in the name of the King on 11 April 1983, it is said that the woman assesses that the intensity of the conflict -staff, social or family - which prompts her to request an abortion is as serious as the serious danger to her life or health in the first of the cases of the 1985 law. According to this law, it is up to the doctor to evaluate and certify that there is a serious danger to the life or health of the pregnant woman, a danger which, in his opinion, has no other solution than the sacrifice of the life of the unborn child. This is a terrible statement, which a doctor who is competent in the practice of his art and respectful of life would never dare to make, as it is so terribly loaded with professional and human responsibility. In the future law, the doctor no longer has to judge: he is called upon by the woman to carry out a decision that she makes and whose justification he does not enter into. It is the subjectivity of the woman who decides how unbearable it is to carry the pregnancy to term, who determines the intensity of the affective, occupational and relational disorder from which she suffers. The woman provides a certificate in which it is stated that the previous administrative procedures have been fulfilled: the doctor only provides his skill guide and technical information. He is not authorised by law to inquire into the reasons for the requested intervention.
In the context of paragraph 2 of article 1 of project, which deals with the new fourth indication, the unborn is not even quotation , which creates a strange status : the foetus is more than an ignored person: it is a legal non-existent, which enjoys the ontological consistency of a parasite that is expelled, of a mass of tissue that is eliminated. The project mistreats the unborn, as it establishes an irresponsible and frivolous relationship with it.
I do not want to go into an analysis of the requirements of counselling and information for women who intend to have an abortion and the serious responsibility that this entails. The experience of other countries sample shows how quickly the task of making a woman aware of what abortion is, of who the child she is carrying becomes an irrelevant bureaucratic procedure. The Supreme Court of the United States, the country where the theory and the internship of free and informed consent was born and developed, prohibited the doctor from informing the pregnant woman that the unborn child is a human being from the moment of fertilisation or from describing the anatomical or physiological characteristics of the foetus, including its appearance and its capacity for perception and response, as an attack on the woman's right to privacy and a parade of atrocities.
Finally, article 3 poses a diffuse but very serious threat to the possibility of conscientious objection. But this is a point for later.
If the project law were to be approved in its current form, we would be faced with an unprecedented status : the doctor would be authorised to act by disconnecting his technical skill from his ethical responsibility. The moral unity of medical action is thus profoundly altered. The consequence is a further weakening of the sincerity and integrity of professional ethics. Because some of this had already happened.
5. The post-permissive deontological rule
article 25.1 of the Code of Medical Ethics and Deontology is a pathetic statement of this weakness of ethics in the face of the law. After stating, in recognition of the biological continuity that marks the ages of man from conception to death, that it is not deontological to admit the existence of a period in which human life has no value and that, consequently, the doctor is obliged to respect it from its beginning, , in the face of the prevailing force of the legal system, is obliged to respect it, the article, in the face of the prevailing force of the legal system, is forced to put in brackets, to leave without effect, this fundamental criterion of medical ethics, when it states that a doctor who, within the law, acts in a manner contrary to this principle will not be sanctioned.
This article 25.1 has been, and continues to be, misunderstood by many. At one extreme, some criticise it as a cowardly surrender, a lowering of institutional trousers. At the other extreme, others reject it as an insult against those who perform abortions, a self-righteous reproach, a residue of morality that has already expired. At bottom, it is a declaration of ethical coherence in the face of the imposing force of the law. It is therefore a pathetic declaration: it upholds the medical principle of every human life and gives up, because it is taken away from it, the possibility of disciplinary proceedings against members of the profession who, within the law, violate the ethical principle. It cannot be otherwise: the doctor who, having been condemned at written request , appeals to the Contentious Jurisdictionmanagement assistant, will see the statutory sentence annulled, while the Medical Association will have to pay, at the very least, the costs and any compensation that may be due.
Neither the legal status nor the deontological rule are unique to Spain. With more or less subtle variations, the codes of ethics in the countries around us say the same thing: that respect for life is an inalienable part of the doctor's professional ethics, but that the permissive legislation on abortion has broken a tradition which, in spite of this, cannot succumb. Physicians must protect themselves from the new permissiveness by means of resource to conscientious objection.
Thus, the Professional Code of German Physicians of 1994 states in paragraph 7: The physician is in principle obliged to respect and protect the life of the unborn. The termination of a pregnancy must be subject to the provisions of the law. The physician may never be obliged to participate in a termination of pregnancy.
The new Code of Medical Ethics of the Order of Physicians of France, C a little over a month ago, on 6 September 1995, after stating in its article 2 that The physician, in the service of the individual and of public health, exercises his mission statement with the utmost respect for human life, the person and his dignity, states in article 18 that The physician may only perform a voluntary termination of pregnancy in the cases authorised by law; He is always free to refuse to do so, and must inform the woman concerned under the conditions and within the time limits laid down by law.
The Principles of European Medical Ethics, promulgated in 1987 by the International Council of Medical Orders lecture , states in its first article that The vocation of the physician is to protect the physical and mental health of man and to alleviate his suffering with respect for his life and dignity, without discrimination as to age, race, religion, nationality, social status or political ideology or any other reason, in time of peace as in time of war. It adds at article 17 that it is ethical for physicians, on the basis of their own convictions, to refuse to intervene in the process of reproduction or in cases of termination of pregnancy or abortion, and shall invite those concerned to apply for to seek the advice of other colleagues.
6. The scientific instructions of the professional civil service examination to abortion
I would like to emphasise one more feature: that the attitude of respect for the life of every human being not only implies an ethical dimension: it is also an invitation not to retract a scientific conviction. With the same restrained pride, with the same coherence with which Galileo affirmed before those who judged him that, despite his political power and moral authority, the sun moves, with the same integrity, the doctor who has studied embryology and has reflected on the ontogenesis of man will not be able to abjure the data provided by the observation of our prenatal history. Nor can he or she fail to feel that the embryo that becomes a child contains a whole human destiny.
The decision to treat the woman's illness without resorting to the destruction of the unborn human being represents a profoundly professional attitude, scientifically and ethically superior to its opposite. Faced with the mother-fetus dyad, the good doctor owes an equal duty to his two patients: the pregnant woman and the unborn child. Today, given the formidable advances in the clinical attendance of diseases that can put the pregnant woman's life at serious risk, no truly competent doctor is obliged, on scientific grounds, to accept that abortion is the treatment of choice for any illness of the mother, i.e. that it is such a superior and advantageous intervention compared to other therapeutic alternatives that not to perform it would mean inflicting deliberate harm on the pregnant woman, and thus seriously violating the medical precept of doing no harm. Without the need to invoke moral objection, the physician, based on the medical art of the day, can reject so-called therapeutic abortion on instructions strictly scientific grounds, since he can offer valid treatment alternatives that also respect the life of the unborn. In recent monographs on the treatment of medical illnesses of pregnant women or critical obstetric situations, either no reference letter therapeutic abortion appears at all or quotation as a possible alternative for a single, exceptional circumstance: the threat of rupture of a dissecting aneurysm of the aorta in Marfan syndrome, which can be prevented by adequate treatment in the early stages of pregnancy.
The physician's refusal to abort foetuses with malformations or defects that seriously disturb their further physical or mental development development is justified by the specifically medical respect for the deficient life. The Code of Medical Ethics and Deontology, in its article 25.2, confers on the sick unborn child the full status of patient.
Abortion is excluded as a treatment for the sick foetus, because the eugenicist idea that human beings must be free of imperfections is alien to medicine. The physician cannot be an agent of the "tyranny of normality": for him, all lives are equally worthy of respect. The sick person, whether before or after birth, is presented to him as someone who, however plagued by illness, is always worthy of his esteem and care. His patients are not perfect biological organisms, radiating a flourishing quality of life, but beings of flesh and blood, marked by both dignity and frailty.
Beyond the ethical dimension of any objecting attitude, whereby the objector wishes to defend his or her identity as a moral person, health care conscientious objection expresses a position on the intrinsically ethical nature of the health professions. It affirms that there is an indissoluble link between the professional's technical skill and his or her moral convictions.
Conscientious objection externalises emblematic ethical-professional contents, such as the utmost respect for the life of the deontological tradition, the area of legitimate freedom of prescription, individual independence in the face of gregarious fashions, and resistance to health consumerism. Conscientious objection is therefore more than just a survival mechanism in an ethically fractured society: it highlights many positive ethical-professional values, forces the development and fine-tuning of new critical attitudes, new negotiation mechanisms, and uncovers the risk of commercial corruption specific to private internship .
For their part, objectors are obliged to give a professional image of conscientious objection that is consistent with their ethical dignity. They will never exploit it to their own advantage. They will not seek privileges, but, while knowing that they will never be free from the discomfort of swimming against the tide, neither should they resign themselves to being victims. They will treat colleagues who hold contrary views with sensitivity and respect, and will never use physical or moral violence to impose their ideas.
In a permissive society, conscientious objection stands as a defender of fundamental rights in the face of laws tolerant of controlled criminality. The doctor who objects to abortion is, in spite of the dictates of intolerance and lack of solidarity that some people hurl at him, a citizen of plenary session of the Executive Council right, who loyally defends the right to life of the unborn, enshrined in the Constitution. His serene but explicit testimony prevents the silent and complacent narcotisation of the professional and social conscience.
7. Conscientious objection to abortion internship
Before going into the consideration of conscientious objection to abortion, I would like to make some brief general considerations on conscientious objection, and then deal more specifically with conscientious objection to abortion and the veiled threat to it contained in the project law.
I like to say that the most significant achievement of medical ethics today has been to place patients and doctors on the same level of human dignity, to assign them the role of conscious, free and responsible moral agents, who respect each other as such. And the proper thing for a mature moral agent is to do things conscientiously, with knowledge and freedom, with skill and deliberation, from agreement with certain rationally founded and deeply felt principles.
Fortunately, doctors and patients are often in agreement at agreement on what should be done to protect and restore health. The doctor-patient relationship is a peaceful, friendly relationship based on trust. On the other hand, we all like to live together in society, obey just laws and contribute to the common good. But it sometimes happens that, because of the increasing ethical pluralism in today's society, we disagree with each other on certain issues of greater or lesser importance. This need not lead to serious conflict or dilemma situations, if we agree agreement that disagreement with agreement adds interest and variety to life. When the disagreement is about negotiable issues, it is always possible to arrive, by making appropriate concessions or adaptations, at a decision that, although less than optimal for all, can be accepted by all. No one is then forced to give up intangible ethical convictions or to betray sound scientific reasons.
But it happens at other times, especially when authority-subordination relations are at stake, that someone may refuse the order or demand of another (of the public authority, of the hierarchical superior) or refuse to comply with a conduct admitted or imposed by law, because he feels an invincible ethical repugnance towards those orders or towards that conduct, so that submitting to what is ordered or demanded is equivalent to betraying or destroying his own conscience, to losing his self-esteem or dignity, to blurring his identity as a moral being.
The rejection, for moral, personal or religious reasons, of what is ordered by authority or the law is a common feature of various attitudes of social dissidence, such as, for example, civil disobedience, conscientious objection or evasive insubordination. What characterises conscientious objection is its peaceful and non-violent nature; its ethical rather than political basis; and, although not always, its intention to bear witness against conduct which, although socially permitted, is considered by the objector to be inadmissible or positively perverse.
The objector does not intend with his or her action to immediately subvert or change the prevailing political, legal or social status , as the activists of civil disobedience do with their outward manifestations, or the propagandists of insubordination do with their spectacular protest actions. The objector tries to peacefully exempt himself from certain actions, without suffering discrimination or loss of rights as a consequence, but at the same time without deriving any advantage or privilege from his objection.
Conscientious objection to decriminalised abortion is the paradigmatic form of health care conscientious objection and, despite this, the subject of permanent discussion , both within the professions, in political bodies and among the general public. It is still far from being a peaceful possession or a definitively recognised and specified right. In many places, objectors suffer, and will continue to suffer, insistent harassment from some bureaucrats, and also from their colleagues.
Public opinion is divided over conscientious objection to abortion. There is a permanent discussion between those who think that, once decriminalised, it is unjust for doctors to deny it to those who request it, as they consider doctors and nurses to be mere technicians, whose moral values must be subjected to legal dynamism, and those who maintain, on the contrary, that, in a society of free and responsible men, no one can be forced to carry out an action that is seriously repugnant to their moral or professional conscience.
But it is not only discussion: unjust and discriminatory decisions are taken against objectors, even in nations that consider themselves to be very liberal and advanced in the promotion of civil rights. In Sweden and in 1993, the right of doctors, nurses, pharmacists and students to conscientiously object to abortion was still pending legal recognition: objectors there form an underclass with fewer rights and opportunities. In the UK, serious abuses have been reported, forcing the House of Commons Social Services committee to intervene. degree program The House of Commons found that, contrary to the 1967 Abortion Act, objectors, especially nurses and junior doctors, are severely impeded in their careers and have been barred from medical schools for students who are reluctant to have abortions. In the United States, the American Medical association and the Joint Commission of accreditation of Hospitals prepared rules a year ago to impose abortion education and internship as a prerequisite in the training of future specialists in Obstetrics and Gynecology. Fortunately, according to recent news, the initiative met with very strong resistance and is about to be abandoned.
When in September last year, the Government announced its decision to send to Parliament the oft-mentioned project of the Law on the Voluntary Interruption of Pregnancy, it provoked an energetic civil service examination from both the management committee of the Spanish Society of Gynaecology and Obstetrics and the Spanish Medical Association. The former demanded changes to the text of project and asked for conscientious objection to be regulated by an organic law, as the Constitutional Court had proposed at the time. The WTO undertook to firmly and uncompromisingly defend doctors' conscientious objection, as indicated in the General Statutes and the Code.
But the ball is still in the court's court: on the one hand, the SEGO's management committee has changed and does not seem so energetic in defending the traditional ethical values of the specialization program; on the other hand, the WTO's advisory service , victim of the dominant legal positivism, has prepared an opinion on conscientious objection full of weakness, heavily influenced by a positivist vision of law.
We are also witnessing a psycho-social evolution which tends to surround objectors with antipathy and unpopularity. The objector no longer always provokes reactions of civil tolerance or ethical admiration. On the contrary, they are confronted with serious legal and professional difficulties, incomprehension on the part of managers and a significant proportion of the media and the public. There is a curious social phenomenon: that of selective antipathy towards conscientious objection to abortion, which contrasts with the support given to objectors to military service and insubordinate conscientious objectors, who, if not as saints or civil heroes, are considered idealistic people.
Within health care institutions, conscientious objection can be a source of serious conflict. The relationship between health care managers who are ideologically indifferent or pro-abortion and objectors is very complex. Administrators are often fascinated by two aspirations: the machine-like efficiency of their management and the slavish desire to please the hierarchy. It is not easy for them to view with sympathy anyone who breaks the regular rhythm of the uniform and scheduled work . Hospital or health care managers, obsessed with reducing the economic cost of medical care and maintaining the optimal functioning of the health care machine, tend to consider any exception or exemption as a disturbing inconvenience.
The relationship between consumers and suppliers is just as complex in today's society. The associative movement of users and consumers has brought about clear improvements in the quality and uniformity of the industrial products that are purchased, the food that is consumed, the services that are used, the attention that is received. In order to attract consumers to certain lifestyles and to create urgent needs, advertising constantly flatters them and turns them, with its promises, into haughty people who are not satisfied with little. It is not easy for today's consumers to give up the immediate satisfaction of their aspirations, or to be satisfied with less than what they have promised themselves.
It is not surprising, therefore, that a doctor's refusal to consent to an abortion is met with contempt, for it is not simply a matter of the inconvenience of not receiving on the spot what one asks for, or the trouble of going elsewhere to obtain what one seeks. The objector's refusal of abortion is taken as a moral insult.
It does not seem that in the future the objector will find much protection in the courts of justice, nor that his attitude will receive support in the legal research . Soon, two years ago, the members of the group of programs of study of Criminal Policy, made up of some 50 professors and 50 magistrates and prosecutors, gathered at the Carlos III University of Madrid, approved a Manifesto in which they pointed out that our Constitution does not enshrine "an individualism incompatible with the social and democratic rule of law", and that, consequently, "the doctor is obliged, despite his conscientious objection, to perform abortion when there are no other doctors available", despite his conscientious objection, to perform the abortion when there are no other professionals willing to perform the termination of pregnancy" and that "the manager of the establishment or the staff health service may be held legally responsible for the consequences that his refusal to perform the intervention may have on the life, health and freedom of the pregnant woman". The Manifesto proposes that conscientious objection to legal euthanasia requested by the patient cannot be denied or limited, and that the doctor should be held responsible for any obstructive actions, if this impedes the right of the patient who has requested financial aid to die.
I believe that objection will in the future become B important. It is not only a question of defending a freedom
8. Legal and deontological regulation of conscientious objection
There is no legislation in Spain on conscientious objection to health care, and, according to the Constitutional Court's Judgement 53/1985 on abortion, it does not seem to be necessary, since in point 14 of its legal grounds it states: "... it should be pointed out, with regard to the right to conscientious objection, that it exists and can be exercised regardless of whether or not such a regulation has been issued. Conscientious objection forms part of the content of the fundamental right to ideological and religious freedom recognised in art. 16.1 of the Constitution and, as this Court has indicated on various occasions, the Constitution is directly applicable, especially in subject of fundamental rights". However, rulings are beginning to be handed down by the High Courts of Justice of the Autonomous Regions, and even by the Constitutional Court itself, which are creating an ataxic and uncertain jurisprudence.
For its part, the Code of Medical Ethics and Deontology states at article 27.1 that it is in accordance with Deontology that the doctor, because of his ethical or scientific convictions, abstains from internship abortion or in matters of human reproduction or organ transplantation. He shall promptly give reasons for his abstention and, if necessary, offer appropriate treatment for the problem for which he was consulted. He shall always respect the freedom of the persons concerned to seek the opinion of other physicians.
Deontologically and statutorily, objection is not a whim or a tactical and changeable position: it is a matter of conviction, which affects not only the objecting physician, but the entire medical profession. It is the responsibility of the medical profession to guarantee to the best of its ability the legitimate independence of doctors, an essential condition for the proper practice of medicine.
Specifically, article 27.2 of the Code of Medical Ethics and Deontology specifies the commitment of the Spanish Medical Association to provide moral support and advice to members who present conscientious objection. It states: A physician should not be conditioned by actions or omissions outside his or her own freedom to declare conscientious objection. The Medical Colleges shall, in any case, provide the necessary advice and support financial aid .
Must they always and in all cases of objection do so? To merit such institutional support, the objector's conduct, as such, must be of a piece, unimpeachable, committed, non-opportunistic, proportionate in dignity and cleanliness to the ethical prestige of the objection. Sometimes, when conscientious objection to abortion is discussed in the media on speech , reference letter is often made of the duplicity of some doctors who object during their hours at work in public services, but who do not do so when they devote themselves to their private internship . This is an extremely serious accusation, which has never materialised in formal complaints to the medical profession or to the administration of justice. In the unlikely event of such conduct, those who engage in it would be subject to serious moral censure and a severe disciplinary transcript , since such behaviour is not only a painful example of moral duplicity, but also constitutes a prohibited statutory offence: diverting, for self-interested purposes, patients from public consultations of any kind to the private enquiry .
Those who govern Structures must also ensure that conscientious objection is respected and that work is redistributed in such a way that there are no unfair situations of punishment or privilege for objectors or non-objectors. It would be a cynical person who invokes conscientious objection to avoid part of the workload he or she has to bear. The good objector willingly compensates with an equivalent work , in intensity, duration, inconvenience and schedule, for what he or she fails to do out of moral repugnance. Similar to what happens in civilian life with the alternative social service for those who object to military service, the moral integrity of the objector will predispose him to accept the work which compensates fairly for the one he has failed to object to.
The Code imposes on the leaders of work groups the duty to create an atmosphere of acceptance and respect for conscientious objection. It states that the leader of group shall ensure that there is an atmosphere of ethical standards and tolerance for the diversity of professional opinions, and shall agree to refrain from acting when one of its members raises a reasoned scientific or conscientious objection. Thus, according to the Code, there is no place for moral violence on the teamwork website. It is more humane and morally more dignified to live together in freedom, respecting, thanks to conscientious objection, the convictions of all, than to impose, even if only on one, the withdrawal of one's convictions.
9. Institutional conscientious objection
It is an interesting question whether, in a free society, not only individuals but also health care institutions are able to invoke conscientious objection, that is, whether a hospital, public or private, or a health insurance system publicly proclaims its attitude towards abortion (or any other internship that provokes moral disagreement).
The problem, apart from the theoretical interest of determining whether and to what extent a hospital is a moral entity capable of making decisions that affect the behaviour of all its members, has immediate practical consequences for health policy, public information, labour relations or the services and benefits offered.
Although there are contradictory opinions on topic, the most widespread view among those who have studied it is that the hospital, at least the private hospital, has the right to constitute itself as a collective moral subject. As a result, over and above the relationships of individual doctors and patients and serving them as an ecological envelope, the hospital can create an internal moral atmosphere, an ethical microclimate, in which both internal tensions and external pressures are regulated and integrated into an institutional creed, a professional style and a publicly proclaimed and voluntarily assumed ethical conscience.
As far as hospital conscientious objection is concerned, and by virtue of a long tradition mainly carved out by Catholic hospitals, it is a peacefully accepted cultural and social fact that hospitals have the right to define, from agreement with their own rules of governance, to declare internship abortion as contrary to their institutional spirit. Even in a purely civil ethical argument, a truly democratic and pluralistic society should recognise the right to ethical pluralism of institutions, including public ones, by virtue of which hospitals could autonomously opt for conscientious objection to abortion.
As with individual objectors, the objecting hospital may run the risk, and the harsh reality, of discrimination and marginalisation for proclaiming and practising the utmost respect for human life. There is a long history of persecution, harassment and slow martyrdom of abortion-averse institutions.
In point 73 of the recent Encyclical Evangelium vitae, John Paul II speaks to us with force and compassion of the moral obligation to object in conscience, of its witnessing value, of its evangelical roots. The Pope presents conscientious objection as a grace, a charism, which gives strength to bear witness to the truth and to endure the modern forms of administrative martyrdom into which the willingness to go to prison or to die by the sword of the past has been transformed. Conscientious objection is, in addition to the salt that prevents health professionals from the corruption of ethical relativism, a sign of hope, a cry for freedom.