For a country sometimes deemed “the most Catholic country in Europe,” abortion is relatively available in Croatia. Terminations are accessible upon request within the first 10 weeks of pregnancy, and under several conditions after that in this 86 percent Catholic nation. But over the last few years, a growing number of gynecologists have been invoking conscientious objection (CO) in their refusal to perform an abortion. This uptick in the practice of CO should be seen as a coordinated, collective action that aims to challenge liberal laws and policies on sexual and reproductive health—part of a larger conservative agenda in this country struggling to balance competing rights claims.
“IF IT DOES NOT CONFLICT…”
The issue of CO is regulated by Croatia’s Law on Medical Practice, which states, “For the sake of their ethical, religious or moral beliefs a doctor has the right to file CO and refuse to perform diagnosis, treatment and rehabilitation of the patient, if it does not conflict with the rules of profession and if this does not cause permanent damage to the health or the patient’s life. One should promptly inform the patient on such decision and refer them to other appropriate medical experts.”
At face value, this seems like a robust definition that encompasses the needs of doctors and patients. In reality, the two sets of rights often conflict, and the law offers few clues about what to do in this case. The sheer number of objectors indicates an imbalance: While official statistics on CO in Croatia do not exist, the research done in 2014 by the Gender Equality Ombudsperson showed that nearly 70 percent of the nation’s gynecologists refuse to perform abortions. In six healthcare institutions, abortions are not performed at all because of doctors’ CO. Another type of clash occurred in 2013, when the media exposed the case of Jaga Stojak, a midwife who was temporarily removed from duty after she refused to assist in performing an abortion because of her religious beliefs. In the same year, the Office of Ombudsperson for Gender Equality processed two cases based on citizens’ complaints: one concerned a pharmacy that refused to issue prescribed hormonal contraception, and the other dealt with a doctor who refused to prescribe emergency contraception.
When and why doctors invoke CO appears to be complex. According to consultants contacted for the 2014 research on the abortion situation in Croatia, some medical personnel perform abortions as part of their work during training—without lodging any objection—but upon finishing specialization they discontinue that practice. It has also been reported that some doctors will say they object to providing an abortion, but then offer the patient an abortion in a private setting at a higher cost.
We can say that Croatia has failed to comprehensively and effectively regulate the practice of CO and thus allowed the denial of reproductive healthcare services to many women. In the last couple of years, we have witnessed the extensive promotion and co-option of the term CO by religiously affiliated groups on the political right aiming to deny women’s right to health and life—disguised as respect for clinicians’ “right” of conscience.
THE BROADER DISCOURSE ON RIGHTS
The concept of CO is one of the layers in the broader discourse of “religious freedom.” Groups on the religious far right will position themselves for or against rights as it suits their needs, criticizing politicians for passing laws that threaten the “traditional family” and/or “national values” while making use of civil initiatives to influence political processes. The threat is perceived to be coming from the developments in antidiscrimination legislation (especially laws regulating hate speech).
The ultraconservative group In the Name of the Family made creative use of the idea of hate speech in its lawsuit against Sandra Benčić from the Center for Peace Studies. The group said that it had been exposed to hate speech and discrimination because of members’ belief that marriage can only exist between a man and a woman. In the Name of the Family filed a lawsuit against Benčić for “lies, stereotypes and prejudices,” including saying that the group “advocates depriving others of their rights,” according to the CROL LGBT news portal.
We can say that Croatia has failed to comprehensively and effectively regulate the practice of conscientious objection and thus allowed the denial of reproductive healthcare services to many women.
In 2013, the Constitutional Court ruled that a sex education program—instituted only a few months before— was unconstitutional because parents were not sufficiently involved in its development. Antichoice media outlet LifeSite News spoke with Vincent Batarelo, president of the conservative NGO Vigilare, which helped mount the legal challenge to the sexuality education program. Batarelo said, “The court recognized what parents, conservative NGO groups, the Catholic Church, and other major religions in Croatia, had been saying all along,” which was that the program “was a beachhead for importing gender ideology and indoctrinating Croatian children against the will of their parents….”
The argument about religious freedom is also raised in the context of CO regarding the provision of abortion and/or contraceptives, as well as in registering same-sex marriages and partnerships. In these cases, “religious freedom” is presented as an absolute, with a presumption that it replaces all other social and legal norms. Criticism of these demands and rhetoric is being labeled as an attack on the freedom of religion.
For instance, a 2013 Vigilare campaign resulted in the removal of a theater poster featuring two Virgin Mary statues embracing—an “insult to the … religious feelings of the majority of Croatian citizens.” The same group staged protests in front of a courthouse to support eighth grade teacher Jelena Mudrovčić, who was accused of discrimination for saying during catechism class that homosexuality is a disease. Vigilare called the lawsuit “stepping on the Catholic Church and its moral teaching.”
Roger Kiska, an attorney with the ultraconservative group Alliance Defending Freedom who is based in Croatia, articulated this sweeping view of religious freedom that is weighted heavily towards a certain type of Christianity. He said, “[I]t means that no one can tell a person of faith what to believe. It means freedom to follow one’s own Christian conscience, even in one’s professional life, without fear of being persecuted or fired from one’s position.”
Additionally, Croatian ultraconservative groups promote the idea of “Christianophobia” and warn about instances of “intolerance and discrimination against Christians.” Kiska cites a 2010 statement on discrimination against Christians in Europe that affirmed the right “to teach Christian/Biblical Anthropology, faith and morality.” As we saw in the quashed sexuality education policy, Croatia has sometimes upheld certain religious groups’ control of education over and above any other social values.
Individual freedoms are not absolute in the European legal context. Article 9 of the European Convention on Human Rights states, “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” In the context of reproductive healthcare, the use of CO is limited by the articles that protect the right to life and the right to privacy, including Article 2: “Everyone’s right to life shall be protected by law” and Article 8: “Everyone has the right to respect for his private and family life.”
A BALANCE BETWEEN DOCTOR AND PATIENT
CO is not an act that takes place in a social and political vacuum, but it is invested with the unequal power relations between doctors and patients that are still operating in many countries and communities. The doctor’s authority contributes to imposing personal religious beliefs upon patients who are often dependent on medical professionals and the healthcare they provide. Given this frame, policy directives assuring that physicians invoking CO do not impose their personal values and do not judge patients’ decisions are not enough. They should include additional monitoring and complaint mechanisms to guarantee that the right to retain one’s religious conviction does not result in the imposition of these values on another person and in the denial of needed healthcare services. It is a state’s responsibility to develop and effectively implement laws that balance these competing concerns.
Moreover, while CO is nominally an issue of individual beliefs, it is embedded in a wider social climate and processes. For example, CO for gynecologists was nonexistent in the former Yugoslavia. It started to occur in Croatia in the mid-1990s, along with the religious revival and increasing social and political influence of the Croatian Catholic church. In the last three years, with the rise of the social movement against gender equality and sexual and reproductive rights, CO is becoming one of the foremost issues on the public agenda for reproductive health.
Another aspect of discussions around CO relates to the responsibility of the medical profession and physicians’ duty to protect their patients’ health. This should be efficiently addressed through additional regulation of conditions for enrolling in medical universities, subsequent regulation of specialization education in healthcare, and, finally, through the appropriate licensing of reproductive healthcare providers. In other words, if doctors are unwilling to perform certain tasks in their profession, they should consider practicing in another areas and disciplines in which CO may not be an issue. To say it even more clearly, it is not a question of “if” but “when” there will be a case in which an abortion is required.
REGULATION AND ACCOUNTABILITY
In January 2015, a group of Croatian medical professionals developed a proposal for comprehensive regulation of the right to CO in medical and healthcare systems in response to the growing rate of doctors invoking CO in providing legal termination of pregnancy.
The proposal calls for a clear, standardized definition of CO and its scope, and specifications of conditions under which it can be applied. It lists crucial content to be addressed when drafting the law on CO and puts forward the objector’s obligations to inform and refer. The document presents guidelines to develop a protocol and eligibility criteria to regulate the claims for CO (similar to the one granting a request for a civil service position), aiming to ensure the authenticity and consistency of CO and to exclude the possibility of selective CO, which is often the case in Croatian hospital practice. Objectors should be officially registered and such registries periodically updated.
Healthcare providers who are conscientious objectors should be obliged to provide information on the declined procedure and available alternatives. They should refer patients to other equally qualified and experienced doctors who do not object to performing the service while minimizing the patient’s inconvenience (time allocation, traveling, expenses). It should be the responsibility of the directors of healthcare institutions to guarantee an effective and immediate referral, considering that the number and timing of requested abortions cannot be predicted. In emergency situations, CO should not be allowed, as a referral may be the same as denying the service. Accountability mechanisms for the obligation to refer should be developed, as this is systematically ignored and abused. Many doctors with CO refuse to further inform and refer patients, as they believe that these actions also violate their conscience.
The sudden increase in the number of doctors invoking CO in the last few years in Croatia is beginning to seem less like individual qualms of conscience and more like a concerted effort to undermine abortion access. The preference of religious beliefs, masked in CO claims, over professional codes and patients’ benefits points to the excessive influence of religion in civic affairs. This demands comprehensive regulation of CO in order to retain a healthcare system that is free of church ideology. While the original concept of CO is about avoiding doing harm or violence against others, the recent massive growth of CO in reproductive healthcare is just the opposite: Denying abortion and/or contraception puts women’s health and lives at risk. We should set the frame for the concept of religious freedom as the freedom to publicly practice faith, which does not include freedom to harm or discriminate others.