Conscientious Objection of Health Care Providers: Lessons from the Experience of the United States

Authors

Soledad Bertelsen, Universidad de los Andes

Abstract

In recent years, legislation and regulations in different countries of the world have raised questions about the conscientious objection of health care providers. In Spain, the Sexual and Reproductive Health and Voluntary Interruption of Pregnancy Act of 2010 (Sexual and Reproductive Health Act) recognizes the right to conscientious objection of professionals directly involved in the termination of pregnancy but also expands the possibility to perform abortions in relation to previous legislation. The application of the conscientious objection clause, however, leaves multiple questions open, and both the administration and the judiciary have reached different conclusions in its interpretation. The discussion about distribution of powers regarding conscientious objection is also present in the United States. In 2008, the Department of Health and Human Services (HHS) issued rules interpreting the Federal Health Care Provider Conscience Protection Statutes. The HHS modified the rules in 2011, alleging that many of these norms were unnecessary because the federal statutes already included enforcement mechanisms. Another example of an unresolved question concerning conscientious objection is present in the controversy created around the religious exemptions of the HHS mandate under the Affordable Health Care Act. The current uncertainty regarding the precise status of conscientious objection leads us to the present comparative study on conscientious objection in the area of health care providers. Despite the vast number of publications related to conscientious objection in the United States, these publications have not approached the issue from a foreign legal perspective. The purpose of this study is not to carry out an exhaustive survey of the American law on the subject but rather to seek some insight for the development of the institution in other countries. The study of the relevant legal norms as well as their application in specific contexts can often spark ideas or suggest approaches tocurrent problems in other jurisdictions, such as Spain. The abundant number of cases, statutes, and regulations in the United States may help to answer questions, such as whether conscientious objection is implicit in the freedom of religion, which branch of government should regulate it, and whether the right to conscientious objection clashes with constitutional provisions. Although American law has its origin in the common law system, the study of conscientious objection in the United States can still be relevant for the development of the institution in civil law countries. First, the U.S. case law is one of the richest in conscientious objection cases. The diversity of material allows the subject to be developed with greater detail and precision than in other countries. Second, in the area of human rights, the similarities are larger than the differences. Because human rights are founded on the inherent dignity shared by all human beings, all members of the human family have equal and inalienable rights. Finally, the essential aspects of conscientious objection cases are common to Western countries. While this study focuses the comparison mainly on Spain, the conclusions derived from it can also be helpful to other States, especially those that only have an incipient protection of conscientious objection.

Recommended Citation

Bertelsen, Soledad (2013) "Conscientious Objection of Health Care Providers: Lessons from the Experience of the United States," Notre Dame Journal of International & Comparative Law: Vol. 3: Iss. 1, Article 1.
Available at: https://scholarship.law.nd.edu/ndjicl/vol3/iss1/1