Università di Trento
The decision taken by some healthcare institutions to open calls reserved for doctors who are willing to perform abortions has caused quite a sensation in Italy. The San Camillo Forlanini Hospital in Rome has been criticized for having opened a public recruitment competition requiring candidates to state their availability to perform abortions, and in doing so excluding a priori the opportunity of participating in the call for those doctors who have a conscientious objection to voluntary termination of pregnancy.
The main points of the debate have focused on the existence of discrimination in participating to the call and on the possible consequences arising if hired doctors reconsider their position towards abortion at a later time, choosing to invoke the right to conscientious objection. In this case, the possible dismissal of the employee might constitute a discrimination because of religion or belief.
That notwithstanding, the discussion is likely to be misleading if the underlying causes behind the adoption of that kind of call are neglected. In other words, we should move the focus from the issue of freedom of conscience to an analysis of the leading causes of a compelling need for a “call for non-objectors.”
As for Italy in particular, the percentages of conscientious objectors among the gynaecologists are incredibly alarming. Data coming from the Ministry of Health show extremely high and increasing rates of objecting medical practitioners, with a national average of 70.7%, reaching 90% in some regions. The Italian government inaction in response to the compelling situation has been condemned as a violation of art. 11 (the right to health) of the European Social Charter by the European Committee of Social Rights, who stated in its decisions IPPF EN v. Italy and CGIL v. Italy that adequate measures must be taken to ensure the availability of non-objecting doctors.
Moreover, the European Court of Human Rights places the States under a positive obligation to organize their health service system in a way to ensure that the exercise of conscientious objection by health professionals does not violate women’s right to a legal abortion. States are therefore obliged not only to guarantee the right to a legal abortion but also to adopt a procedural framework enabling an effective exercise of the right and the concrete access to abortion services. Therefore, a future condemnation from the ECtHR cannot be excluded as long as Italy stays reluctant to the adoption of the required measures.
As a matter of facts, the key issue lies in a kind of vicious circle in which a wide diffusion of conscientious objection is self-perpetuating. The high rates of objecting medical practitioners are in fact likely to cause a continued increase of objecting personnel.
For the understanding of the above phenomenon, different circumstances need to be taken into account. First of all, the lack of non-objecting personnel leaves to the few non-objectors the entire workload of voluntary termination of pregnancy, forcing them to spend their work time exclusively on performing abortions. Those who are willing to perform abortions end up working overtime, carrying out operations considered to be exhausting and missing career development opportunities. That’s why many non-objecting doctors get tired of what has become an unsustainable burden and decide to invoke their right to refuse to perform abortions, further increasing the workload and responsibilities for their colleagues.
Furthermore, non-objecting personnel might be intimidated while facing a working environment in which the majority of the colleagues and the Chief Physicians are conscientious objectors. As noticed in CGIL v. Italy, non-objectors are very likely to feel criticized for their work in similar environments and to undergo moral harassment, resulting in a violation of their freedom of conscience. The above situation has also been acknowledged by the European Committee of Social Rights, who stated that the failure to take any preventive measure against moral harassment amounts to a violation of art. 26§2 (right to dignity at work) of the European Social Charter.
Lastly, we cannot forget that the high percentage of objecting-personnel may limit the training and specialization of medical practitioners, resulting in the inability of medical students to perform abortion procedures. Even the education of those doctors refusing to perform an abortion has to be assured, considering that they have nevertheless an obligation to personally intervene in the case of imminent danger to the life of the woman.
All things considered, the “calls for non-objectors” are just the reaction to an unsustainable situation, in which not only women’s rights but also the rights and dignity of non-objecting doctors are under constant threat.
Moreover, section 9§4 of Act No. 194/1978 (Italian Abortion Act) itself imposes to regions and healthcare facilities a duty to assure the performance of abortions. This interpretation of the law had already been accepted by the Administrative Tribunal of Emilia Romagna in 1982, who stated that the goal of the law has to be fulfilled either through staff mobility or by ad hoc recruitment of doctors who are willing to perform abortions. The selective hiring of non-objecting personnel has also been endorsed by the Italian National Committee for Bioethics in 2012.
We may conclude that the call selection procedure should not be considered illegitimate when strictly required to pursue the aim of Act No. 194/1978. Each call has to be read within a framework of a balancing of rights, in which the discriminatory measure is justified when it meets the requirements of proportionality and reasonableness. The effectiveness of other fundamental rights, such as the right to health of the pregnant woman, requires a necessary and reasonable limitation to the right to manifest one’s belief. In other words, a specific “call for non-objector” should be justified when there are no other less restrictive means to guarantee women’s fundamental right to health and the correct fulfilment of Act No. 194/1978, which in fact appears to be the situation occurring in some healthcare facilities in Italy.
 Ministry of Health Report of 2016 on the implementation of the standards for social maternity safeguards and voluntary termination of pregnancy (Law 194/78), pp. 44-56. Available from: http://www.salute.gov.it/imgs/C_17_pubblicazioni_2552_allegato.pdf.
 European Committe of Social Rights, International Planned Parenthood Federation – European Network (IPPF EN) v. Italy, Complaint No. 87/2012,
 European Committe of Social Rights, Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013
 European Court of Human Rights, P. And S. v. Poland, App. No. 57375/08, §106.
 T.A.R. Emilia-Romagna, sez. Parma, 13 dicembre 1982, n. 289, in Foro amm., 1983, I, pp. 735-736.
 Italian National Committee for Bioethics, Obiezione di coscienza e bioetica, 12 luglio 2012, available from: http://bioetica.governo.it/media/170715/p102_2012_obiezione_coscienza_it.pdf