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A Balance of Rights: The Italian Way to the Abortion Controversy
Abstract
The U.S. Supreme Court's Dobbs ruling triggered a global debate about access to abortion and the legislative models governing it. In the United States, there was a sudden reversal of federal guidance about pregnancy termination that is unprecedented in Western and high-income countries. The strong polarization on the issue of abortion and the difficulty of finding a point of compromise lead one to consider the experiences of countries that have had different paths. Italy stands as a candidate for being a partially alternative model because it allows abortion up to 12 weeks, but without considering it a subjective right. The legislation in place since 1978 aims to balance the interests of the fetus and those of the woman. An issue often raised concerning Italian law is that of conscientious objection granted to doctors. Many gynecologists declare themselves objectors, and this makes access to abortion more difficult in some regions of Italy. After discussing this issue and envisaging different ways to deal with it, the article concludes by highlighting new dilemmas about a possible divorce between the law and medical ethics in different directions and offers some avenues to begin setting up a response.
... Other rights regarding bodily autonomy, such as abortion and euthanasia, maintain tacit majority approval, despite the Magisterium's clear positions. The country retains strong legislation protecting the right to interrupt a pregnancy (while it allows for an NHS service deficit through the practice of medical conscientious objectors; Reichlin and Lavazza, 2023). Despite no effective laws on euthanasia in Italy, the Constitutional Court's Decision No. 242 (2019) exempts those who assist a freely made and independent decision to commit suicide from criminal liability (Riva, 2024). ...
Decision-making dynamics in Italian paediatric care for Intersex and Variations of Sex Characteristics (VSC) involve a complex interplay between medical practices, parental perspectives, and socio-cultural factors. This article explores how medical professionals and parents make decisions amid cultural debates on gender, the body, and autonomy. It addresses aspects of why surgical intervention, with limited child involvement, is often seen as the ‘only option’ in the ‘conservative’ culture of Italy. The article continues to highlight the rise of parent-led human rights-based activism in Italy, challenging prevailing narratives in intersex/VSC paediatric care. Using qualitative data from two studies, including interviews with 15 Italian stakeholders and 38 Italian parents, as well as participant action research, the article provides insights into Italian medical and parental perspectives. The findings emphasize the need for nuanced support, education, and resources to empower parents in order to uphold the rights and well-being of intersex individuals.
The past decade has seen a burgeoning of scholarly interest in conscientious objection in health care. Specifically, several commentators have discussed the implications that conscientious objection has for the delivery of timely, efficient, and nondiscriminatory medical care. In this paper, I discuss the main argument put forward by the most prominent critics of conscientious objection-what I call the Professional Duty Argument or PDA. According to proponents of PDA, doctors should place patients' well-being and rights at the center of their professional practice. Doctors should be prepared to set their personal moral or religious beliefs aside where these beliefs conflict with what is legal and considered good medical practice by relevant professional associations. Conscientious objection, on this account, should be heavily restricted, if even allowed at all. I discuss two powerful objections against PDA. The first objection, which I call the fallibility objection, notes that law and professional codes of conduct are fallible guides for ethical conduct and that conscientious objection has in the past and continues today to provide a check on aberrations in law and professional convention. The second, which I call the professional discretion objection, states that restrictions on conscientious objection undermine one of the cornerstones of good medical practice, namely, a practitioner's right to independent professional judgment. I argue that these two objections give us reason to retain conscience clauses in professional codes of conduct.
The debate regarding the role of conscientious objection in healthcare has been protracted, with increasing demands for curbs on conscientious objection. There is a growing body of evidence that indicates that in some cases, high rates of conscientious objection can affect access to legal medical services such as the abortion—a major concern of critics of conscientious objection. Moreover, few solutions have been put forward that aim to satisfy both this concern and that of defenders of conscientious objection—being expected to participate in the provision of services that compromise their moral integrity. Here we attempt to bring some resolution to the debate by proposing a pragmatic, long-term solution offering what we believe to be an acceptable compromise-a quota system for medical trainees in specialties where a conscientious objection can be exercised, and is known to cause conflict. We envisage two main objectives of the quota system we propose. First, as a means to introduce conscientious objection into countries where this is not presently permitted. Second, to minimise or eliminate the effects of high rates of conscientious objection in countries such as Italy, where access to legal abortion provision can be negatively affected.
Although abortion in Italy is free of charge and legal in a broad set of circumstances, 71% of gynecologists are registered as conscientious objectors, i.e. they are exempted from performing abortions for reasons of religious or moral beliefs. To assess whether this practice limits abortion access, we analyze aggregate regional data on abortion and a dataset of over one million clinical records of single interventions performed between 2002 and 2016. Results, from both cross-regional panel data and microdata analysis, suggest that conscientious objection hampers abortion access at the local level, being a significant driver of a woman's decision of having an abortion out of the region of residence and leading to longer waiting times to have one. Conscientious objection appears to have a stronger impact on women living in lower-income regions or experiencing other forms of economic disadvantage.
This comment considers the Italian Law 194 on abortion forty years after its approval in 1978 and it focuses on how its meaning has emerged as a result of its interpretation and application over that forty-year period.
Conscience-based refusals by health care professionals to provide care to eligible patients are problematic, given the monopoly such professionals hold on the provision of such services. This article reviews standard ethical arguments in support of conscientious refuser accommodation and finds them wanting. It discusses proposed compromise solutions involving efforts aimed at testing the genuineness and reasonability of refusals and rejects those solutions too. A number of jurisdictions have introduced policies requiring conscientious refusers to provide effective referrals. These policies have turned out to be unworkable. They subject patients to a health care delivery lottery, which is incompatible with the fundamental values of medical professionalism. This paper sheds light on transnational efforts aimed at undermining progress made in reproductive health by means of conscientious refusal accommodation claims. The view that the accommodation of conscientious refusers is indefensible on consequentialist ethical grounds, as well as on grounds related to medical professionalism itself, is defended.
Background
The legitimacy of conscientious objection to abortion continues to fuel heated debate in Italy. In two recent decisions, the European Committee for Social Rights underlined that conscientious objection places safe, legal, and accessible care and services out of reach for most Italian women and that the measures that Italy has adopted to guarantee free access to abortion services are inadequate. Nevertheless, the Ministry of Health states that current Italian legislation, if appropriately applied, accommodates both the right to conscientious objection and the right to voluntary abortion.
Main body
One empirical argument used to demonstrate that conscientious objection does not create barriers to abortion is the “no correlation” argument, which the Italian Committee for Bioethics employed to demonstrate that no association exists between conscientious objection and waiting times for voluntary abortion in Italy and to support the weak form of conventional comprise adopted by the Italian legislation to balance the conflict between women’ autonomy and healthcare professionals’ moral integrity. Conversely, we showed how the “no correlation” argument fails to demonstrate the absence of a relationship between the number of conscientious objectors and waiting times for voluntary abortion, and that the limitations of the “no correlation” argument itself demonstrate how it is still difficult to describe the real effect of conscientious objection on the access to abortion services and to evaluate the suitability of conventional compromise to effectively balance conflicting moral principles.
Conclusion
Further studies are needed to better describe the relationship between conscientious objection and waiting times for voluntary abortion. If new evidence would show that the increasing proportion of objectors does undermine the efficacy of the Italian law and the right of a woman to freely obtain a voluntary abortion, new ways will need to be found to address the conflict between moral principles and restrict the protection accorded to the principle of moral integrity. This would inevitably imply the need to constrain and to redefine the terms and conditions for claiming conscientious objection.
A widespread assumption has taken hold in the field of medicine that we must allow health care professionals the right to refuse treatment under the guise of ‘conscientious objection’ (CO), in particular for women seeking abortions. At the same time, it is widely recognized that the refusal to treat creates harm and barriers for patients receiving reproductive health care. In response, many recommendations have been put forward as solutions to limit those harms. Further, some researchers make a distinction between true CO and ‘obstructionist CO’, based on the motivations or actions of various objectors.
Deeply held religious beliefs may conflict with some aspects of medical practice. But doctors cannot make moral judgments on behalf of patients
Shakespeare wrote that “Conscience is but a word cowards use, devised at first to keep the strong in awe” ( Richard III V.iv.1.7). Conscience, indeed, can be an excuse for vice or invoked to avoid doing one's duty. When the duty is a true duty, conscientious objection is wrong and immoral. When there is a grave duty, it should be illegal. A doctors' conscience has little place in the delivery of modern medical care. What should be provided to patients is defined by the law and consideration of the just distribution of finite medical resources, which requires a reasonable conception of the patient's good and the patient's informed desires (box). If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors. Doctors should not offer partial medical services or partially discharge their obligations to care for their patients.
Doctors have always given a special place to their own values in the delivery of health care. They have always had greater knowledge of the effects of medical treatment, and this fostered a belief that they should decide which treatments are appropriate for patients— that is, paternalism. Their values crept into clinical decisions.1 2 This has been squarely overturned by greater patient participation in decision making and the importance given to respecting patients' autonomy.3 More recently, doctors' values have reappeared as a right to conscientiously object to offering certain medical services. Examples include, refusal to offer termination of pregnancy, especially late term termination, to women who are legally entitled to it and refusal to provide reproductive advice and help to gay couples, single …
The upcoming U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization has the potential to eliminate or severely restrict access to legal abortion care in the United States. We address the impact that the decision could have on abortion access and its consequences beyond abortion care. We posit that an abortion ban would, in effect, mean that anyone who becomes pregnant, including those who continue a pregnancy and give birth to healthy newborns and those with pregnancy complications or adverse pregnancy outcomes will become newly vulnerable to legal surveillance, civil detentions, forced interventions, and criminal prosecution. The harms imposed by banning or severely restricting abortion access will disproportionately affect persons of color and perpetuate structural racism. We caution that focusing on Roe as a decision that only protects ending a pregnancy ignores the protection that the decision also affords people who want to continue their pregnancies. It overlooks the ways in which overturning Roe will curtail fundamental rights for all those who become pregnant and will undermine their status as full persons meriting Constitutional protections. Such a singular focus inevitably obscures the common ground that people across the ideological spectrum might inhabit to ensure the safety, health, humanity, and rights of all people who experience pregnancy.
In complex, pluralistic societies, different views concerning the moral duties of healthcare professionals inevitably exist: according to some accounts, doctors can and should cooperate in performing abortion or physician-assisted suicide, while according to others they should always defend human life and protect their patients' health. It is argued that the very plurality of responses presently given to questions such as these provides a liberal argument in favour of conscientious objection (CO), as an attempt to deal with moral diversity by protecting both the professionals' claim to moral integrity and the patients' claim to receive lawful and safe medical treatments. A moderate view on CO is defended, according to which none of these claims can be credited with unconditional value. Claims to CO by healthcare professionals can be justified but must be subjected to a reasonableness standard. Both the incompatibility of CO with the medical profession and its unconditional sanctioning by conscience absolutism are therefore rejected. The paper contributes to the definition of the conditions of such reasonableness, particularly by stressing the role played by conceptions of good medicine in discriminating claims to CO; it is argued that respecting these conditions prevents from having the negative consequences dreaded by critics. The objection according to which accepting the physician's duty to inform and refer is inconsistent with the professed value of moral integrity is also discussed.
In the United States, abortion rates have been falling for several decades while attitudes have remained relatively stable. Given this background, this paper examines the current status of the fluid and contentious US abortion debate. Five relevant questions are examined: (1) What is responsible for the new wave of restrictive laws and what are their effects? (2) What is most likely responsible for changes in abortion rates? (3) What are the effects of the addition of medication abortion into the mix of abortion services? (4) What forces continue to fuel economic, geographic and racial/ethnic disparities in access to abortion services? (5) Why have gay rights been embraced by a majority of the US public and supported in legislation and judicial decisions, while during this same time period abortion rights have stagnated or declined? It is crucial for feminists to continue to promote the cause of abortion and other reproductive rights. Most important, however, is a focus on broader social issues for women (e.g., adequate education, affordable day care) and the underlying causes of unequal power in society.
This article analyzes the problem of complicity in wrongdoing in the case of healthcare practitioners (and in particular Roman Catholic ones) who refuse to perform abortions, but who are nonetheless required to facilitate abortions by informing their patients about this option and by referring them to a willing colleague. Although this solution is widely supported in the literature and is also widely represented in much legislation, the argument here is that it fails to both (1) safeguard the well-being of the patients, and (2) protect the moral integrity of healthcare practitioners. Finally, the article proposes a new solution to this problem that is based on a desirable ratio of conscientious objectors to non-conscientious objectors in a hospital or in a given geographic area.
Objectives This study sought to determine whether a correlation exists in Italy between conscience-based refusal by physicians to perform an abortion and waiting times for elective abortion. Methods Data on the number of objectors and of elective abortions performed within different time intervals were retrieved from annual Italian ministerial reports. Spearman's correlation coefficients were calculated between an indicator of the increase in workload for non-objectors when conscientious objection is exercised by physicians refusing to provide an abortion and the proportion of women whose request for an abortion was met within 14 days, or later, in 13 regions in Italy. Results An inverse correlation emerged between the workload for non-objectors and the proportion of abortions performed within 14 days of the request in seven regions (statistically significant in Emilia-Romagna and Tuscany). There was a direct correlation between increased workload and the proportion of abortions performed later than 21 days in nine regions. The same trends were highlighted at national level. Conclusions Our results suggest that when data spanning at least more than a decade are available, a trend toward an inverse correlation can be noted between the workloads for non-objectors and timely access to elective abortion. This holds organisational and ethical implications.
The law regulating abortion in Italy gives healthcare practitioners the option to make a conscientious objection to activities that are specific and necessary to an abortive intervention. Conscientious objectors among Italian gynaecologists amount to about 70%. This means that only a few doctors are available to perform abortions, and therefore access to abortion is subject to constraints. In 2012 the International Planned Parenthood Federation European Network (IPPF EN) lodged a complaint against Italy to the European Committee of Social Rights, claiming that the inadequate protection of the right to access abortion implies a violation of the right to health. In this paper I will discuss the Italian situation with respect to conscientious objection to abortion and I will suggest possible solutions to the problem.
Employing insights from Italian sexual difference theory on law and rights, this article examines how both the text of the Italian Abortion Law of 1978 and its operation reveal the contradictions within liberal rights discourse on reproductive freedom. The Act itself contains traces of both Roman Catholic and liberal pluralist worldviews and has, since its introduction, been the site of conflict over competing notions of citizenship and legal identity. This article explores the impact of the Act's paradoxical nature on its operation against the background of the complex debates within the different strands of feminist theory in Italy over the question of reproductive freedom.
From the publisher's website at: http://fty.sagepub.com/cgi/content/abstract/10/2/227
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