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When Health Care Providers Refuse Care, Whose Rights Are at Stake?

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Recently, an appeals court in Scotland ruled that a wide range of service providers have a right to object to helping with the provision of abortions, even if the care they provide is not directly related to the termination of a pregnancy. In the original ruling, last year, the duties carried out by the two Catholic midwives who brought the case had been considered so removed from the actual abortion that there could be no objection. The appeals court, however, disagreed. Everyone even tangentially involved, it said, has the right to object to providing a wide range of services. The only exception would be life-saving care.

This ruling highlights issues that have relevance beyond Scotland.

The tragic death of Savita Halapannavar in Ireland last year crystallized that no one really knows for sure when a woman is dying from pregnancy-related complications. Over the years, I have interviewed dozens of medical providers in countries with restrictive abortion laws. A key concern for the vast majority of them was how to make sure their actions were legal. Those working in countries where only life-saving abortions are permitted often expressed fear that they would either turn too many women away, with fatal consequences, or ultimately lose their license for providing care to someone who wasn't "dying enough."

Let's apply this notion in a context where anyone involved, however tangentially, in the provision of abortion services can refuse to treat a woman who is not dying.

This situation raises questions which, regardless of the answers given, compromise quality care. Who gets to determine how lethal each pregnancy is? Can a treating doctor compel assisting midwives or nurses to intervene if she or he believes the patient otherwise will die? And would midwives and others have the right to sue if they had been compelled to help provide an abortion to a woman who ultimately survived? There are no good answers to these questions, and any regulatory solution would almost inevitably lead to substantial delays in care.

Another key concern with a broadly defined right to conscientious objection in the context of health care is access to care in remote--or sometimes not so remote--areas. In the United States, much anti-choice activism is directed at making abortion impossible rather than illegal. Legislators, judges, and other officials in states including Mississippi, Virginia, and North Carolina have made it their goal to run every last abortion provider out of their state. Already, 35 percent of the U.S. population lives in counties without an abortion provider.

Moreover, broad conscientious objection clauses in combination with the stigmatization of abortion generally can stifle the provision of care anywhere. In small communities where everybody knows each other and where abortion is thought of as "evil," doctors, nurses, and midwives often object to providing care out of fear rather than faith. After all, they still have to make their living where they are.

When I researched access to abortion for rape victims in Mexico, I came across various innovative "solutions" to this problem. In one area, abortion teams were circulated between public hospitals to ensure that no one had to provide care in his or her home town. In another, abortions were provided with the knowledge only of the senior-most officials at selected hospitals, with the result that many women in need of urgent care were turned away because "we don't do that here" (even at hospitals where they, in fact, did).

Neither of these approaches solved the underlying problem: that abortions are seen as separate from other medical care (which they are not), and that abortion providers are considered different from other medical providers (again, not true). As a result, patients had to seek legal care in a clandestine manner, and in many cases the additional option of conscientious objection for anesthesiologists or nurses--who were not part of the core teams--made abortions virtually impossible to obtain.

Everyone has the right to freedom of thought, religion, and conscience. But international human rights standards do not protect our right to express those thoughts or that conscience in a manner that infringes on other people's human rights. The more I learn about the concrete repercussions of conscientious objection in the context of health care, the more it is clear to me that there is no room for it. Ultimately, if you don't want to provide the obstetric or gynecological services your patient needs--which may include an abortion--maybe you should choose another field of specialty.

This was first published on RHRealityCheck.org