Safe Abortion: Technical and Policy Guidance for Health Systems, a newly revised publication of the World Health Organization, claims that objecting health care workers have an ethical responsibility to refer patients for abortion, or to provide abortions if referral is not possible. (Sec. 3.3.6, p. 69, Box 3.2,p. 73). It also claims that conscientious objection without referral is a barrier to health care and that referral is a legal obligation under human rights law. Chapter 4 of the text, which is the basis for these demands, was revised under the guidance of the Programme on International Reproductive and Sexual Health Law in the Faculty of Law at the University of Toronto, Toronto, Canada (p. 11). Two professors from this faculty, Rebecca Cook and Bernard Dickens, have been making such claims for years. They have, in the past, seriously misrepresented the law on this point in an effort to make referral for abortion mandatory. (See Postscript for the Journal of Obstetrics and Gynaecology Canada: Morgentaler vs. Professors Cook and Dickens, and Conscientious Objection as a Crime Against Humanity.) The WHO document has been reviewed and criticized by Susan Yoshihara of the Catholic Family and Human Rights Institute, but awaits a critique by medical and legal professionals.
Int J Gynaecol Obstet. 2009 Mar;104(3):249-52. Epub 2008 Nov 29.
Rebecca J. Cook, Monica Arango Olaya, Bernard M. Dickens
The Constitutional Court of Colombia has issued a decision of international significance clarifying legal duties of providers,hospitals, and healthcare systems when conscientious objection is made to conducting lawful abortion. The decision establishes objecting providers’duties to refer patients to non-objecting providers, and that hospitals,clinics, and other institutions have no rights of conscientious objection. Their professional and legal duties are to ensure that patients receive timely services. Hospitals and other administrators cannot object, because they do not participate in the procedures they are obliged to arrange. Objecting providers, and hospitals, must maintain knowledge of non-objecting providers to whom their patients must be referred. Accordingly, medical schools must adequately train, and licensing authorities approve, non-objecting providers. Where they are unavailable, midwives and perhaps nurse practitioners may be trained, equipped, and approved for appropriate service delivery. The Court’s decision has widespread implications for how healthcare systems must accommodate conscientious objection and patients’ legal rights. [Full Text]
Med Law. 2009 Mar;28(2):337-47. PubMed PMID: 19705646.
Bernard M. Dickens
The right to conscientious objection is founded on human rights to act according to individuals’ religious and other conscience. Domestic and international human rights laws recognize such entitlements. Healthcare providers cannot be discriminated against, for instance in employment, on the basis of their beliefs. They are required, however, to be equally respectful of rights to conscience of patients and potential patients. They cannot invoke their human rights to violate the human rights of others. There are legal limits to conscientious objection. Laws in some jurisdictions unethically abuse religious conscience by granting excessive rights to refuse care. In general, healthcare providers owe duties of care to patients that may conflict with their refusal of care on grounds of conscience. The reconciliation of patients’ rights to care and providers’ rights of conscientious objection is in the duty of objectors in good faith to refer their patients to reasonably accessible providers who are known not to object. Conscientious objection is unethical when healthcare practitioners treat patients only as means to their own spiritual ends. Practitioners who would place their own spiritual or other interests above their patients’ healthcare interests have a conflict of interest, which is unethical if not appropriately declared. [Full Text]
The Lancet, Volume 371, Issue 9620, Pages 1240 – 1241, 12 April 2008
Bernard M. Dickens
In some regions of the world, hospital policy, negotiated with the health ministry and police, requires that a doctor who finds evidence of an unskilled abortion or abortion attempt should immediately inform police authorities and preserve the evidence. Elsewhere, religious leaders forbid male doctors from examining any part of a female patient’s body other than that being directly complained about. Can a doctor invoke a conscientious commitment to medically appropriate and timely diagnosis or care and refuse to comply with such directives? [Full Text]
Int J Gynaecol Obstet. (2007) 99, 157-161
Rebecca J. Cook, JN Erdman, Bernard M. Dickens
National and international courts and tribunals are increasingly ruling that although states may aim to deter unlawful abortion by criminal penalties, they bear a parallel duty to inform physicians and patients of when abortion is lawful. The fear is that women are unjustly denied safe medical procedures to which they are legally entitled, because without such information physicians are deterred from involvement. With particular attention to the European Court of Human Rights, the UN Human Rights Committee, the Constitutional Court of Colombia, the Northern Ireland Court of Appeal, and the US Supreme Court, decisions are explained that show the responsibility of states to make rights to legal abortion transparent. Litigants are persuading judges to apply rights to reproductive health and human rights to require states’ explanations of when abortion is lawful, and governments are increasingly inspired to publicize regulations or guidelines on when abortion will attract neither police nor prosecutors’ scrutiny.[Full Text]
Med Law. 2001;20(2):283-93. Review. PubMed PMID: 11495210.
Bernard M. Dickens
Reproductive health services address contraception, sterilization and abortion, and new technologies such as gamete selection and manipulation, in vitro fertilization and surrogate motherhood. Artificial fertility control and medically assisted reproduction are opposed by conservative religions and philosophies, whose adherents may object to participation. Physicians’ conscientious objection to non-lifesaving interventions in pregnancy have long been accepted. Nurses’ claims are less recognized, allowing nonparticipation in abortions but not refusal of patient preparation and aftercare. Objections of others in health-related activities, such as serving meals to abortion patients and typing abortion referral letters, have been disallowed. Pharmacists may claim refusal rights over fulfilling prescriptions for emergency (post-coital) contraceptives and drugs for medical (i.e. non-surgical) abortion. This paper addresses limits to conscientious objection to participation in reproductive health services, and conditions to which rights of objection may be subject. Individuals have human rights to freedom of religious conscience, but institutions, as artificial legal persons, may not claim this right. [Full Text]
Int J Gynaecol Obstet. 2000 Oct;71(1):71-7. Review. PubMed PMID: 11044548.
Bernard M. Dickens, Rebecca J. Cook
Principles of religious freedom protect physicians, nurses and others who refuse participation in medical procedures to which they hold conscientious objections.
However, they cannot decline participation in procedures to save life or continuing health. Physicians who refuse to perform procedures on religious grounds must refer their patients to non-objecting practitioners. When physicians refuse to accept applicants as patients for procedures to which they object, governmental healthcare
administrators must ensure that non-objecting providers are reasonably accessible. Nurses’ conscientious objections to participate directly in procedures they find religiously offensive should be accommodated, but nurses cannot object to giving patients indirect aid. Medical and nursing students cannot object to be educated about procedures in which they would not participate, but may object to having to perform
them under supervision. Hospitals cannot usually claim an institutional conscientious objection, nor discriminate against potential staff applicants who would not object to participation in particular procedures. [Full Text]
Int J Gynaecol Obstet. 66 (1999) 55-61
BM Dickens, RJ Cook
The potential and actual applications of reproductive technologies have been reviewed by many governmental committees, and laws have been enacted in several countries to accommodate, limit and regulate their use. Regulatory systems have nevertheless left some legal and ethical issues unresolved, and have caused other issues to arise. Issues that regulatory systems leave unresolved, or that systems have created, include disposal of embryos that remain after patients’ treatments are concluded, and multiple implantation and pregnancy. This may result in risks to maternal, embryonic and neonatal life and health, and the contentious relief that may be achieved by selective reduction of multiple pregnancies. A further concern arises when clinics must or choose to publicize their success rates, and they compete for favorable statistics by questionable patient selection criteria and treatment priorities. [Full Text]