When Chile’s National Congress passed a law that legalized abortion under three specific circumstances last year, a “conscientious objection” clause was included. Such clauses allow people not to follow laws that violate their convictions or beliefs.
In the case of abortion, the clause allows medical professionals to refuse to perform abortions if performing them violates their religious or moral beliefs. If they object, they must then refer the woman or girl to a medical professional who does not.
Conscientious objection, then, is always personal. The idea of “institutional conscientious objection” instated in Chile is extremely questionable from a human rights perspective.
First, it distorts human rights by giving a “conscience” to institutions. Freedom of conscience as a human right can only belong to a person, and so conscientious objection can only be a personal decision, never an institutional one. Second, by allowing entire institutions to object, it increases the probability that women and girls won’t find a facility willing to perform safe abortions when they need them. And finally, it also infringes on the rights of medical professionals who do not object, whose choice is coopted by that of an institution.
Because of its exceptional character, it should be highly regulated and restricted to guarantee that it never becomes an obstacle to women’s and girls’ access to a legal, safe abortion if they need one, and so that it never puts their lives or their health at risk because of delays caused by conscientious objection.
Congress passed a law that specifically excluded institutional conscientious objection. It said, correctly, that conscientious objection would always be personal and could “in no case” be invoked by institutions.
However, this was modified by the Constitutional Court (CC) when it revised the constitutionality of the proposed law after senators and representatives of the Chile Vamos party filed an injunction. The decision eliminated the phrase “in no case,” which means that the law now in force allows institutions to invoke conscientious objection.
According to the CC, because the Constitution recognizes “intermediary groups” (any organization of multiple people who are intermediaries between individuals and the government) and guarantees them “adequate autonomy to fulfill their own specific ends,” these groups must be able to operate according to their founding principles.
Therefore, if an institution has an “ideology” in its founding principles that is not compatible with the practice of abortion, it should not be obligated to perform abortions as an institution. For the same reason, this only applies to private institutions and never to public institutions, which cannot have an “ideology.”
As it stands, we have a law that does not comply with either of the two previous assumptions; it invents an institutional conscientious objection that has no precedent of any kind in international human rights law, and that beyond being recognized, stands without any kind of legal regulation – Congress sought to exclude it, and so obviously did not regulate it.
The protocol for the application of conscientious objection enacted in December 2017 by the Michelle Bachelet administration established a series of formal requirements for the exercise of conscientious objection. Now, in March 2018, after various institutions seeking to object presented two stays for protection in court, the Sebastián Piñera administration released a new protocol that fundamentally eliminates requirements and other aspects of the Bachelet administration regulations.
I want to highlight two differences that are perhaps the most important.
The first is that the Bachelet administration’s protocol established that if private institutions had agreements with the government to provide gynecological services, they could not become objectors. This was completely eliminated by the Piñera administration’s protocol.
The government, which is obligated to guarantee access to abortion under the circumstances permitted by law, can give funds to private clinics to provide gynecological services, even when they refuse to perform abortions and, therefore, diminish access to safe abortions for women and girls. It does not make sense that the government can finance a private institution that refuses to provide a service, using scarce funds to finance services that do not completely cover patients’ needs.
The second is that the Bachelet administration’s protocol required an objecting institution, when registering as such, to provide the reasoning for which it seeks to object. This makes sense given the ruling of the CC; if to object it is necessary that the institution have an “ideology,” it becomes relevant to explain the ideology and why the objection is necessary.
This was also eliminated by the Piñera administration’s protocol. This allows any clinic to declare itself an objector, even private companies that have no clear “ideology.”
So we have this strange invention of the “institutional conscientious objection,” with no legal regulation, and with a protocol that basically permits all clinics to declare themselves objectors just like that and, furthermore, receive government funds for providing gynecological services.
This is hugely alarming, especially for woman and girls who pay into Chile’s Social Security Health Institutes and use the private health system. This could become a real obstacle for their access to, and coverage for, the kinds of abortion protected by law. In practice, they may only be able to interrupt their pregnancies when their lives are at imminent risk, which would essentially be the case if this law had never been passed.
The government has the responsibility to ensure that women and girls who need an abortion under the circumstances permitted by law have access to safe, affordable abortion services, as a minimum expression of respect for their human rights. Conscientious objection has been identified by various United Nations bodies as an obstacle to women’s and girls’ access to abortion. It is necessary to take all possible measures to keep conscientious objection from becoming an obstacle to legal abortion. It seems that the government has forgotten that this means adopting regulations that facilitate access, instead of restricting it further and further.
This article was published in spanish by IPS