The United Nations Working Group on Discrimination Against Women and Girls (WGDAWG) this summer issued important new guidance on how governments can comply with their obligations to ensure that individual refusals to provide health care services based on religion or conscience do not create a barrier to reproductive health services, including abortion services. The guidance responds to reports of widespread abuse of “conscience claims” that have undermined abortion access in many regions. As States now turn to the process of implementing the guidance, we offer an explainer on what it requires and why implementation is necessary for States to comply with their international legal obligations.
Given the grave impact that delays or denial of care have on the health and lives of pregnant people, the WGDAWG’s guidance emphasizes that States should only allow conscience claims to refuse abortion services if they can ensure that pregnant people can promptly access these services from another provider. If States allow conscientious objection they must “immediately implement a human rights-compliant framework” which “clearly define[s] and regulate[s] the legal and ethical limits of health providers’ ability to refuse services.” This also may require taking action to ensure that there are adequate non-objecting providers.
The guidance analyzes the problem of widespread, unregulated refusals of care and discusses the proper balance between religious accommodation and the right of women, girls (and others) to equality and to access sexual and reproductive health services. Its analysis starts from governments’ obligation to ensure nondiscriminatory access to sexual and reproductive health care as recognized under the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of Persons with Disabilities, and the Convention on the Rights of the Child. In addition, although the International Covenant on Civil and Political Rights (ICCPR) does not include the right to health, the Human Rights Committee (HRC) has recognized that other rights protected by the ICCPR, including the right to life, the right to be free from torture and cruel, inhuman and degrading treatment, the right to non-discrimination and the right to privacy can require access to abortion. Because of these human rights obligations, the HRC and the Committee on Economic, Social and Cultural Rights have stated that States should remove barriers to effective access to sexual and reproductive health care and safe and legal abortion including unregulated or insufficiently regulated exercise of conscientious objection. Based on States’ obligations to ensure access to services without delay, the guidance sets forth the elements of a proper regulatory framework.
Widespread Abuse and Impact. The guidance responds to a global problem of “unchecked exercise of conscientious objection” and widespread claims that have resulted in lack of access across entire geographic regions.
The guidance describes the ways conscience claims are abused. For example, when claims are “over-inclusive and inadequately or unclearly regulated,” providers decline to provide services based on their subjective views on a case-by-case basis (often rooted in patriarchal attitudes and gender stereotypes) about whether a particular abortion is justified. This allows health care providers to impose their views on their patients. The guidance also discusses instances where employers improperly coerce individual health care providers who would otherwise be willing to perform abortions to claim that they object.
The WGDAWG further observes that widespread invocation of conscientious objection “strains health-care systems by increasing workloads for non-objecting providers and stigmatizing abortion provision, which in turn negatively impacts non-objecting providers’ career decisions and, ultimately reduces the availability of skilled workers.” This can result in the improper “defensive use” of conscientious objection where providers refuse to provide care out of fear of complaints, liability, harassment, adverse career impact, and poor working conditions.
The guidance also recognizes that conscientious objection disproportionately impacts the most marginalized and vulnerable patients, who already “face greater difficulties in accessing services or obtaining referrals due [in part] to power dynamics between providers and patients.” This makes “access to abortion services difficult or impossible for many, even in countries where patients are legally entitled to care.”
Conscientious Objection Cannot Violate the Rights of Others. Citing to jurisprudence from the HRC and CEDAW Committee, the guidance emphasizes that “[a]utonomy in reproductive decision-making is fundamental to women’s and girls’ rights to equality and privacy [and r]eproductive autonomy is essential to matters of physical and psychological integrity.” Denial or restricting access to sexual and reproductive health services may infringe upon women and girls’ rights to life, health, and freedom from torture or ill-treatment. Further, the guidance states that “[d]enial of abortion is not acceptable, as the right to safe and legal abortion is protected under international law.”
The guidance recognizes that reasonable accommodation for religious belief is an important pragmatic tool for States to overcome religious discrimination or intolerance. However, drawing on the work of the U.N. Special Rapporteur on Freedom of Religion and Belief, it distinguishes between the right to freedom of thought, conscience, and religion and the right to manifest (or act on) those beliefs “which can be subject to limitation where necessary to protect the rights of others.”
Indeed, the Special Rapporteur has stated that it is “difficult to justify the accommodation of religious beliefs when the consequences are discriminatory and impose harm on others, especially on groups that may have long faced discrimination and marginalization.” Further, the guidance notes that multiple U.N. human rights treaty bodies, including the HRC “have emphasized that no woman or girl should face barriers or be denied sexual and reproductive health information and services due to a refusal of care or conscientious objection by health care providers.” Similarly, regional human rights bodies, including the European Court of Human Rights have recognized that if States allow conscientious objection by health care professionals they must ensure that it does not prevent patients from obtaining access to services to which they are entitled.
Ethical Obligations. The guidance also considers health care providers’ ethical obligations noting that the primary duty of health care providers is to “treat, provide benefits to and prevent harm to patients [and] refrain from denial of essential services.” Conscientious objection is “secondary to this primary duty.”
State Obligations if They Allow Conscientious Objection. According to the guidance, if States permit conscientious objection, “the State has an affirmative obligation to ensure that the invocation of conscientious objection by health-care providers does not infringe upon the sexual and reproductive health rights of women and girls.” Consistent with authority from the African Commission on Human Rights and the Inter-American Commission on Human Rights providing that if States allow conscientious objection they must provide the necessary infrastructure to ensure that patients can access care, including adequate referral mechanisms and prohibitions and sanctions for improper conscience claims, the guidance states that when governments allow conscientious objection it “is necessary to clearly define and regulate the legal and ethical limits of health providers’ ability to refuse services based on individual conscience and belief in health care settings.”
The idea that States have an obligation to adopt regulations that may constrain or limit individual conduct is supported by States’ due diligence obligations recognized under international law. While human rights treaty obligations do not have “direct horizontal effect,” the HRC has noted that State failure to ensure or protect rights from acts by private parties can violate treaty obligations if the State fails to take “appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such private persons or entities.” In General Comment 36 discussing the right to life, the HRC opines that the due diligence obligation to address reasonably foreseeable private threats to the right to life includes an obligation to adopt “reasonable positive measures,” including appropriate laws and procedures, that do not impose disproportionate burdens. The WGDAWG’s recommended regulatory framework, discussed in more detail below, is carefully crafted to address foreseeable threats to the human rights of women and girls when States permit health care providers to refuse to provide abortion care based on conscientious objection without imposing disproportionate burdens.
In order for states to accommodate individual conscience claims and prevent the creation of a barrier to care, according to the Committee on Economic, Social and Cultural Rights, States must ensure that there are adequate health care providers able to provide services within reasonable geographic reach. This may require that States work to train and recruit providers, and the guidance suggests that, in some instances, States may require that health care workers are willing to provide abortions as a condition of employment. It describes a case where a Swedish court rejected a claim brought by a midwife who refused to provide abortions who claimed that the failure of three women’s health clinics to hire her violated her right to manifest her religion. The court held that the clinics were not obligated to hire the midwife because “any interference with religion was in pursuit of the legitimate aim of protecting the health of women seeking abortions and the Government of Sweden had an obligation to guarantee access to abortion.”
Human Rights Approach to Regulating Conscientious Objection. Drawing from U.N. treaty bodies, regional human rights bodies, decisions from national courts from Colombia, Spain, Mexico, and New Zealand, the International Federation of Gynaecology and Obstetrics, and the World Health Organization, the guidance describes a “human rights-based” approach to regulating conscientious objection, which includes the following elements:
- Objections must be narrowly defined individual accommodations. The ability to object should be limited to the direct provider of the medical intervention and the objection must be based on the provider’s own convictions.
- Objections must be prohibited in emergency situations. Conscientious objection cannot be invoked where the pregnant person’s health is at serious risk and the patient requires emergency care or treatment.
- The ability to object should be contingent on the patient’s access to timely services. Refusals should not be permitted unless patients are given timely referrals to another provider who is willing and able to provide the services to ensure that care is not compromised by delays or denials.
- Institutional conscientious objection must be prohibited. “[P]artial or total privatization” of health care does not exempt the State from its obligation to ensure non-discriminatory access to services, and States must prohibit institutional conscientious objection, including de facto institutional objection resulting from en masse staff denials.
- States that permit conscientious objection must have regulatory systems in place with strong monitoring mechanisms to prevent abuse, and legal recourse should be available for those denied abortion because of conscientious objection.
- States should organize health systems to ensure that sufficient non-objecting providers are hired and are distributed fairly across the country and educate and train health care workers and medical students about their obligations to provide emergency abortion care and post-abortion care and the rights of women and girls.
- States should decriminalize abortion to provide greater clarity about the legality of abortion to prevent invocation of conscientious objection to avoid potential legal liability.
- States should affirm the right to safe and legal abortion and recognize women’s and girls’ autonomy.
As abortion laws are liberalized around the world and conscientious objection increases, States must reconcile claims for religious accommodation with the impact that widespread and unregulated refusals to provide abortion care and other reproductive health services have on the lives, health, and rights of women, girls, and others who need care. The WGDAWG’s guidance outlines a much needed human rights-based approach to enable States to craft and refine policies to ensure their compliance with international law obligations.