By Inma Álvarez
MADRID, Spain, APRIL 6, 2011 (Zenit.org).- Conscientious objection in the field of health care is an issue attracting media and legal attention across the Western world, particularly in regard to the right to object to the «right» to abortion.
Regarding this issue, Spanish jurist Rafael Navarro-Valls, a law professor and regular contributor to ZENIT’s Spanish-language edition, has recently published a book, together with Javier Martínez Torrón, titled «Conflictos entre conciencia y ley. Las objeciones de conciencia» (Conflicts between Conscience and Law: Conscientious Objections).
ZENIT spoke with the author about the nature and limits of conscientious objection in the area of health care. Part 1 of this interview was published Tuesday.
ZENIT: Does conscientious objection presuppose a correctly formed conscience? That is, does it presuppose that positive law can be unjust, which is equivalent to recognizing a legal foundation beyond the positive law, a «natural law» that compels the conscience?
Navarro-Valls: In principle, conscientious objection is a fundamental right that even protects the so-called erroneous conscience. The state is not competent to evaluate the motivations that drive the consciences of its citizens.
However, it is obvious that in many cases, the objector acts moved by a natural law that is above positive law. This isn’t an anomaly. A few years ago on the 50th anniversary of the beginning of that judicial drama that was the Nuremberg trials, it was noted that by rejecting the thesis of «due obedience» to the national-socialist law and to the chain of command when it orders atrocities, an ethical function was favored, which in the classic theory of justice corresponds to the personal conscience. Nuremberg demonstrated that Western juridical culture is founded on radical juridical values, above the decisions of eventual majorities or plebiscitary impositions.
ZENIT: What do you think of European directives in the concrete case of the objection of health personnel to abortion? And of the Spanish abortion law? Why is there so much reticence to recognize this right?
Navarro-Valls: The detectable reticence to recognize this right in its fullness has suffered a severe juridical setback by the recent resolution 1763 (2010) of the Parliamentary Assembly of the Council of Europe. Established there is a clear prohibition to coerce or discriminate against persons or institutions that refuse — for any reason — to take part or collaborate in a voluntary abortion, euthanasia, or any act that causes the death of a human fetus or embryo. At the same time, it invites the member states to develop norms that will fully protect conscientious objection to abortion, guaranteeing health personnel the right to abstain from any type of abortifacient or euthanasic practices.
In regard to Spain, the regulation of conscientious objection to abortion made in the Organic Law 2/2010, to the degree that it tries to restrict it, clashes frontally with the doctrine of the Constitutional Court which, already in the 14th juridical foundation of the STC 53/1985, protects it fully, on declaring it an integral part of the fundamental right of ideological and religious liberty recognized by article 16.1 of the Spanish Constitution. Moreover, the clauses of the 2010 law that call for adding abortifacient techniques to the curricula of certain health degrees justify that several medicine faculties in Spanish universities have posed institutional conscientious objection to those teachings. Their argumentation: «The tragedy of an unwanted pregnancy cannot be solved with the higher tragedy of abortion. Our commitment is to form professionals to cure, investigate and help.» It reminds me of the position adopted by two anesthetists in an American prison called to give a lethal injection to a man sentenced to death. Their refusal was based on this argument: «We are doctors, not executioners.»
ZENIT: In some cases objection to prenatal diagnosis has been proposed, as this can imply a «death sentence» for the fetus. If this were taken to the extreme, not even ultrasounds could be made, as any diagnosis might lead the mother to abort. In what cases would it be justified to object? Is there a difference between invasive and non-invasive techniques?
Navarro-Valls: To understand this type of objection, which in fact some gynecologists have already asked themselves, it is appropriate to recall that this medical technique is usually used to detect genetic malformations. For example, in its protocols the Spanish Society of Gynecology and Obstetrics recommends that amniocentesis be done before the 22nd week, to give time to abort legally. Hence the reason that the usual prenatal examination is related to values related to human life: it affects disabled persons, as individuals and as a group, as well as respect for the rights of autonomy of pregnant women.
In this context, the objections posed by gynecologists are based on the following reasoning: 1. There is nothing objectionable in carrying out obstetric controls geared to detect situations that can be prevented or treated, including finding fetal sicknesses to be treated in utero or after birth; 2. However, sometimes the prenatal diagnosis implies a disproportionate potential risk for the child in gestation or lacks therapeutic usefulness. In these assumption is becomes a eugenic instrument. The children can be aborted — and in fact at times they are — with trivial diagnoses: cleft palate, club foot, curable pathologies, such as cardio-pathologies, etc.; 3. It is in these situations that objections have been posed. In Spain, the adoption of cautionary measures have been accepted judicially so that the objecting gynecologist can refuse to make those diagnoses, «as the harm they could cause would be difficult to repair» (STSJ of Andalusia, Sept. 30, 2008).
ZENIT: Finally, we pose the case of a doctor who is obliged to object to a medical practice that he considers contrary to his conscience. What steps must he follow to make this decision? Must objection be the last resort?
Navarro-Valls: Before objecting in conscience, the doctor — including primary care doctors, who in some countries are the first ones obliged by law to give pregnant women information on abortifacient practices — must confirm that the abortion proposed is legal, namely, that it is included in the norms covered by the law. If it were not, then of course what opposes it is legal objection, that is the refusal to carry out an abortifacient practice that can be criminal.
Having verified that the abortion is legal, he can then use conscientious objection. The method will depend on each legislation. In Spain, the new legislation of 2010 established that the objection must be made «in advance and in writing,» without specifying anything else. The normal way would be to do so at the hospital or health center in which one works. There are medical schools where there is a register of objectors: It is prudent that it also be recorded in that register. Suffice it to object once and no type of authorization is necessary.
In case of a refusal from a higher authority, the doctor can initiate an administrative process and then a judicial one, until a judicial resolution is made, until all recourses are exhausted. In any case, during the duration of that judicial process the doctor is not obliged to carry out any abortion whatsoever.
In Spain there is the «Guía de Objeción de Conciencia Sanitaria al Aborto» (Guide for Conscientious Objection to Therapeutic Abortion) published by ANDOC, July 2010, where all these steps that I summarize here are very well explained, as well as the classes of people (administrative, medical, paramedical personnel, etc.) who enjoy the right of objection. I refer to this excellent guide.
[Translation by ZENIT]— — —
On ZENIT’s Web page:
Part 1: www.zenit.org/article-32235?l=english
