1. Introduction

When hearing the term conscientious objection (CO), the first thing that comes to mind is Jehovah’s Witnesses’ refusal of blood transfusions or refusal of compulsory military service. But in recent years, CO cases have multiplied, to the point that some authors speak of a «big bang» of conscientious objections ⁽¹⁾. The conflict between authority and conscience is as old as man, and CO has been around for centuries in human history. In the Bible appears the case of the Maccabean brothers ⁽²⁾, and there is also that of the first Christians who refused to offer sacrifices and worship Caesar ⁽³⁾. Then, in the Middle Ages, society became more homogeneous, as there were the same ethical and religious values, so CO was generally reduced to disobedience to authority in the face of laws or mandates that were considered unfair. As of the 16th century, ethical pluralism of thought, conscience and religion began to increase, with which conflicts of conscience increased, especially with cases of objection to compulsory military service. Thus, Napoleon dispensed the Mennonites who objected to the service of arms in the conquered countries, assigning them to auxiliary services of the army ⁽⁴⁾.

In the 20th century, the term CO began to be used properly, closely linked to human rights. The first CO legal ordinances also appeared in several countries, initially in relation to the refusal of compulsory military service, based on religious beliefs or for pacifist, humanist, ethical or philosophical reasons, even in non-believers ⁽⁵⁾. The CO to military service is approved linked to a substitute civilian or unarmed military service (health, quartermaster, administrative) in Sweden (1902), Australia (1903), South Africa (1912), Great Britain (1916), Canada, New Zealand and the United States (1917), Soviet Russia (1919), Norway and the Netherlands (1922), Denmark (1933), Luxembourg (1953), France (1953), Austria (1955), Finland (1959), Belgium (1964), Federal Republic of Germany (1968), Italy (1970), Portugal (1976), Spain (1978), Argentina (1985), and Paraguay (1992) ⁽⁴, ⁶, ⁷⁾. Today, society has diversified; it is becoming increasingly complex and pluralistic with a greater diversity of opinions, cultural identities, conceptions of thought, ethical and philosophical ideas, and religious beliefs, so that CO assumptions have multiplied. Therefore, it is necessary to legislate the possibility of CO, since it is a relevant issue in the 21st century in view of the ethical diversity of people, and because human rights require respect for individual autonomy, moral integrity and dignity of people, taking into account their ethical and religious convictions ⁽⁸⁾.

CO can only occur in societies that value individual autonomy, convictions and pluralism, which allows people with different ethical and religious conceptions to coexist. This is typical of liberal, democratic and secular countries, which is why the right to CO is relatively recent in the history of humanity. On the other hand, it is difficult for it to exist in totalitarian countries or countries that do not recognize individual rights, autonomy and pluralism. However, in democratic societies where laws emerge from majority legislative votes, it is not always guaranteed that the laws are fair or respect the ethical or religious convictions of minorities, which may affect the deep convictions of citizens and their own identity ⁽⁹⁾.

It is necessary to distinguish between the legality and legitimacy of a law. Legality is the fulfillment of the necessary requirements for a legislative proposal to have the character of a law. It affects the form, the external aspect. Legitimacy, on the other hand, is the justice, goodness, reasonableness of a law, which must be in accordance with the nature of things. A law that contradicts the nature of persons, even if it is legal when approved with all the formalities by a legislative majority, will be an unjust law. If that law goes against the conscience of the people, there will be no obligation to obey it. This is the case of the Athenian Socrates (400 B.C.), who preferred to die rather than obey an unjust mandate ⁽¹⁰⁾. It was also raised in 441 B.C. in the tragedy Antigone, by Sophocles ⁽¹¹⁾, when the tyrant Creon of Thebes, after a fight between Eteocles and Polynices in which both die, makes a law so that the body of Eteocles is buried with honors, while that of Polynices remains unburied, to be eaten by birds. But when her sister Antigone decides to bury him, and is imprisoned for disobeying the law, she answers the tyrant that this law is contrary to the nature of things, and is only a capricious commandment that no one is obliged to obey. In our societies, majority ideological groups have imposed some laws that are legal, but not just. This was the case of the Nazi laws for the extermination of the Jews, or of Germans with hereditary or mental defects (Aktion T4 program, of 1939), or those of apartheid in South Africa for racial discrimination, or those of decriminalization of drug trafficking and consumption, or those of certain procedures that go against the right to life of human beings.

Therefore, a democracy must have mechanisms that guarantee CO, since a well-ordered society needs the possibility of recognizing the right to conscientious objection, as long as it comes from conscious and specific attitudes ⁽¹²⁾. It is only in secular States, which are committed to neutrality towards different religious and ethical convictions, without favoring any that CO can occur. Part of the respect for religious and ethical plurality is to allow freedom of thought, conscience and religion, and CO is a concrete expression of these freedoms ⁽⁹⁾. As Blancarte ⁽¹³⁾ says: Only in a secular state does religious freedom and freedom of conscience really exist, whether for religious or philosophical reasons. In confessional States what exists, in the best of cases, is tolerance towards minority creeds, but no real freedom to believe, convert or proselytize, besides the fact that there is neither equity in the treatment of the State towards religions, nor autonomy in the political sphere towards the religious. Neither in officially atheist or anti-religious States do such freedoms exist, since atheism becomes an officially established belief (that of non-belief), and this generates not only inequity in the treatment, but also religious persecution. Thus, only the secular state guarantees freedom of conscience, and with it the possibility of conscientious objection.

2. Definition and characteristics of conscientious objection (CO)

It is difficult to include precisely the various aspects of CO, so there are many definitions. As a starting point, I propose the following: It is the personal attitude based on the principles of his ethical conscience, by which he feels obliged to disregard a certain legal provision or a hierarchical superior, which forces him to act against his conscience or prevents him from acting in accordance with it.

There are other simpler definitions, such as the refusal, for reasons of conscience, to perform an act or conduct that in principle would be legally required⁽¹⁴⁾, or personal resistance to a legal prescription because it is contrary to a moral prescription that is considered to prevail ⁽¹⁵⁾. Others define it as a refusal of a person to comply with a specific judicial order, considering it incompatible with his fundamental ethical convictions⁽⁸⁾, or as a realization of the freedom of conscience that, within the right limits, leads an individual to fail to comply with a certain legal provision that obliges him -under penalty or deprivation of a benefit- to act against his conscience or prevents him from acting in accordance with it⁽⁵⁾.

CO can occur in any professional who is forced to perform an act that goes against his or her conscience. Some common examples are journalists, with the conscience clause in the face of impositions from the journalistic company; public servants who refuse to perform certain administrative acts; students and researchers who refuse to practice or experiment with animals; the refusal of parents to allow their teenage children to attend certain extracurricular subjects; the opposition of pharmacists to supply certain drugs in their establishment; the refusal of Jehovah’s Witness students and teachers in schools to salute the flag and sing the national anthem, which in some countries is obligatory. It also occurs in patients in hospitals who request a type of food according to their religious prescriptions; or refuse to receive biological products derived from animals, such as insulin, pig heart valves; or in women who, out of modesty, refuse to be examined by male doctors who do not belong to their religious group; or the refusal of Jehovah’s Witnesses to receive blood transfusions, even in life-threatening situations.

Of course, it also occurs in doctors and nurses, but also in midwives, orderlies and even hospital administrative staff, who may refuse to intervene in certain techniques permitted by law, as long as the patient is not in a life-threatening emergency situation. This is the case of some sexual and reproductive health procedures; of anticipating the end of life, with suspension of treatments or life support, and in countries where it is legal, of assisted suicide or euthanasia; of refusal to participate in research that destroys human embryos, or in adults with certain drugs, or other types of experiments permitted by law, such as genetic ones; of refusal to declare death, despite the presence of encephalic death; refusal to prescribe, at the patient’s request, drugs that are not indicated or contraindicated, or to perform futile procedures, such as excessive aesthetic or other surgeries on the same patient, without waiting for a positive evolution, or when they are in a terminal state; some psychosurgical interventions; forced feeding of hunger strikers; cooperation with the police in obtaining information; participation in the execution of capital punishment in countries where it exists; refusal of Jehovah’s Witnesses to perform blood transfusions.

Once CO has been defined, four essential characteristics will be described:

a) It is fundamental to the conscientious integrity of the objector, because it is based on reasons of conscience that affect his ethical, philosophical or religious convictions, which are of great importance to him ⁽⁸⁾. Conscience is understood as the critical evaluative capacity of one’s own acts, in relation to the moral law that human nature has within it. It can be considered as the subjective experience of ethics. The CO entails the defense of his personal convictions, which make it impossible for him to comply with a legal mandate ⁽⁴⁾.

The moral integrity of a person is at stake when, in accordance with his conscience, he cannot perform an action that he is obliged to do by law or authority. CO would be an attempt to maintain that integrity of conscience ⁽⁹⁾. But this implies that the person has certain values, which are an integral part of his identity or of the conception he has of himself ⁽¹⁶⁾.

b) It is a private and apolitical action; that is to say, an individual behavior, since the judgment of conscience is personal, whose objective is to avoid the transgression of a moral duty and to maintain the integrity of conscience in the face of a norm that contradicts its fundamental convictions. Its purpose is not to have a law eliminated or changed, or to seek a change of policy on an issue, but only to be exempted from compliance for reasons of conscience and without suffering legal consequences ⁽⁸⁾.

This differentiates CO from similar figures, such as civil disobedience or passive resistance to a legal norm, which cannot be confused. However, in both there is a refusal to comply with a law, but in civil disobedience the justification is different. While the latter is a public political act, an attempt on the part of the agent to change policies, conscientious objection is a private act done to protect the agent from interference on the part of the public authority⁽¹⁷⁾. Civil disobedience can be individual or collective, seeking to assert one’s right to participate in collective decisions or to object to laws that seem unjust, so that the individual feels exempted from complying with them ⁽⁹⁾. The purpose is usually to press for the modification or repeal of a law or a State policy that is considered unfair, or, that a class action lawsuit is agreed. Sometimes, however, peaceful insubordination to a law has nothing to do with the norm that is being disobeyed, which in itself is not objected to, but its disobedience is used as a means of pressure to get their demands acceded to. Here the purpose is fundamentally political, and conscience is not primarily involved ⁽¹⁵⁾. This is the case of Gandhi in India or Martin Luther King with civil rights in the United States of America, who sought social and political change.

On the other hand, the purpose of the CO is not the modification of laws, but only the exemption from complying with it and the protection of the private sphere, in the face of an imposition that the person considers contrary to his conscience and ethical principles ⁽⁹⁾.

c) The reason for the CO is the existence of a legal obligation that opposes the ethical or moral convictions of a person’s conscience, whether or not based on religious beliefs ⁽¹⁴⁾. As a consequence, the person feels a moral duty to obey his or her conscientious convictions, over and above the legal provision or the mandate of an authority. However, the motives cannot be ideological or political, since those would not be of conscience. Nor is it sufficient that it is a law considered unjust, but which does not impose an ethically reprehensible conduct for that person.

In short, it is based on the possible negativity of a civil law, and refers to the priority value of the person with respect to the State ⁽¹⁵⁾. There is CO whenever the authority intends to impose a mandate that goes against the ethical and moral convictions of a person. Authorities must respect basic freedoms, which are part of the human rights of individuals.

But human conscience can be informed by very varied codes (religious, philosophical, cultural), which the law cannot determine precisely. It is the most difficult element to prove, being subjective ⁽⁴⁾. Often the only direct proof of the objector’s moral convictions is his word, which must generally be taken as good, unless there is reason to believe otherwise ⁽⁹⁾. The methods used in the countries to verify the sincerity of the alleged objectors are very varied. One example is the substitute social benefit of equal magnitude or more burdensome than the general obligation, which is used in many countries in connection with CO to military service. However, the fact that the substitute social benefit is greater, rather than equal in magnitude, has been questioned as a violation of freedom of conscience and equality before the law ⁽⁵⁾.

CO is more frequent in the face of positive legal precepts, which oblige certain conduct, with prejudice in the case of refusal. But it can also occur in the face of negative precepts, which prohibit an action. Moreover, CO is more feasible when it is a positive precept, since non-compliance is usually less serious and causes less disruption to the social order than when there is a violation of a prohibitive mandate, due to the principle of freedom that exists in democratic states ⁽¹⁸⁾.

d) The CO must respect fair limits, such as not seriously affecting the rights of third parties, or harming public order or the common good. There are laws that are not objectionable because they protect inescapable duties of justice. For example, the objection against the payment of taxes, or the legal duty to provide food and education to minor children, or the duty of the physician to attend a patient in an emergency situation, with risk to his life. On the other hand, there are other legal duties that, although they seek the common good, like any law, resolve circumstantial situations or situations of convenience in a situation, but their breach entails minor consequences with respect to the unavoidable duties of justice ⁽⁵⁾.

3. Grounds for conscientious objection (CO)

Human rights are inherent to the human being, and CO is based on human rights, as a concretization of the right to freedom of thought, conscience and religion, as well as on the prohibition of discrimination on religious grounds. These freedoms are recognized in almost all constitutions and in various international legal documents, which we will see in this section.

Today, anyone can object when an authority asks him to do something that his conscience judges to be wrong, counterproductive or unethical. No authority can eliminate freedom of conscience, and force us to do something that goes against our ethical and moral convictions. The authorities have the obligation to respect the basic freedoms that are part of human rights. If a state does not respect or does not allow CO, then it is against human rights and freedom. CO can never be considered unlawful conduct in a democratic system, where there is real protection of human rights. CO is currently understood as an immunity from coercion by authority or a legal norm, so that, within just limits, no one is forced to act against his conscience or prevented from acting in accordance with it. The CO is a reflection of the current concern to establish limits to the increasingly invasive States, being a means of resistance to an abusive intrusion of the authority in the interiority of the people, who can manifest their open opposition to obey a legal mandate ⁽⁵⁾.

What is proper to the human being is freedom and will, which implies freedom of conscience to think and choose a type of action. If the will is annulled, that human being is no longer free. By freedom of thought, people can have their ideas in any field, and choose in conscience with their will a type of decision. Another different thing is the freedom of action, since one can choose something, but, sometimes, one does not manage to act. No one can restrict my freedom of choice; freedom of action, on the other hand, is in the context of other human actions. It is always said that «my freedom ends where someone else’s freedom begins,» and that affects freedom of action. The legal system limits freedom of action, which can be regulated between two extremes, the obligatory and the prohibited. But in between, there is ample room for freedom of action. Another aspect that limits the freedom of action is the moral conscience, which can raise the rejection of an action and, consequently, one should not perform something that the authority wants to impose. What do we do then? There are different rights, obligations, values, and there is a great variety among people. Some options we can share, but others we cannot, because of freedom of thought or because they are against our conscience, and so we must exercise CO.

The right to CO is also justified on the basis of the protection of autonomy and moral integrity, which are part of the dignity of the person ⁽¹⁶⁾. Individual autonomy includes the moral autonomy to give oneself values and ethical principles, with which we decide to guide our lives and actions. A State that would force its citizens to an action by means of punishment and against their will, instead of out of a sense of duty, would not be respecting autonomy, nor would it be recognizing their dignity as human beings. Respecting individual autonomy implies a pluralistic vision, which accepts that citizens have the right to act according to their ethical convictions, as long as there is a sufficiently strong justification for not requiring them to comply with a mandatory rule. However, some object to individual autonomy, saying that by itself it is not a reason to conclude that judgment and action are correct. For example, when one decides to act autonomously according to neo-Nazi principles or racial discrimination. Certainly, to be acceptable, personal judgments and actions must be based on reasonable ethical or religious principles for the community, and not for personal convenience or for reasons that seriously infringe on the rights of others ⁽⁹⁾.

Regarding justification based on the integrity of conscience, as stated in the first essential characteristic of CO, a person cannot perform an action to which he is obliged if it goes against the integrity of his conscience, which is part of his identity. To perform such an action would imply that he dissociates himself by acting against his own moral identity ⁽⁹⁾.

The right to CO is legally recognized in almost all countries, as can be seen in the global map of conscientious objection norms ⁽¹⁹⁾, being in most countries a recognition with limitations, but in others it is unlimited (Angola, Cuba, Estonia, Moldova, Namibia, Zimbabwe), and is only prohibited in Bulgaria, Ethiopia, Finland, Lithuania, Sweden and Venezuela. There are other countries that have no laws either for or against it, both in Europe (Macedonia, Switzerland, Turkey, Ukraine), and in America (Bahamas, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Dominican Republic), and in quite a few nations in the Middle East, Africa and Asia.

Recognition of CO in most countries is not protected at the constitutional level, but it is in secondary laws. Nor is CO explicitly recognized in international legal instruments, except in the case of CO to compulsory military service. However, the vast majority of constitutions and international documents include the rights to freedom of thought, conscience and religion, from which the right to freedom of conscience and religion derives, as a consequence, the right to conscientious objection. Moreover, this right is reinforced by legal provisions prohibiting discrimination on religious grounds.

However, in order to be able to exercise CO, it is not strictly necessary for it to be recognized by the laws of a country; it does not depend on the will of the legislators. Even if CO is not recognized in the legal order, it is automatically justified by ethical principles and the right to freedom of thought, conscience, religion, as well as non-discrimination on religious grounds, which are recognized in all constitutions and in various international legal instruments. Human rights can be understood as a type of moral rights, which do not arise from the norms of positive law ⁽⁹⁾, but, as Nino indicates ⁽²⁰⁾: ...it is understood that the rights thus created constitute only a consecration, recognition or means of implementation of those rights that are logically independent of this juridical reception. Respect for human rights is demanded even in the face of legal systems that do not recognize them and precisely because they do not recognize them. It is currently untenable to refuse to accept CO if, at the same time, the right to freedom of conscience is recognized. Although a legal system may not recognize the right to CO, it can be claimed on the basis of a justification, not only in terms of human rights, freedom, autonomy, integrity, dignity, but also on the basis of these rights explicitly recognized in international legal instruments, which are described below ⁽⁹⁾:

4. Problems raised by conscientious objection

Among the ethical and legal problems raised by CO are the following:

5. It is necessary to determine when and how CO should be manifested

Regarding when to express CO, ideally, do not wait to be asked to perform a procedure that is against your conscience. This is especially important for healthcare personnel, since if the head of the facility or service does not know in advance who is or is not an objector, this can create major conflicts when on duty. The first thing to do is to know what CO is. Then, object in advance to the specific practices to the hierarchical superior, but not verbally, but in writing. This should be done when you start working in an institution or when you approve a practice that goes against your personal ethical convictions. By communicating this, the service may be organized with non-objecting personnel, and the objector may be assigned other procedures. If the objection is not met, the next steps are:

a) The health personnel will appeal to the Hospital Bioethics Committee, which is responsible for the CO issue, to ensure the honesty and consistency of the objector. But it is not their responsibility to determine the ethicality of the procedure alleged by the objector, since no one can replace their conscience.

b) If the professional is on the payroll, he can also appeal to the union, whose mission is to defend the human rights of the worker.

c) If their CO is not accepted and they want to force them to carry out a procedure they object to, while the time is running out before the different instances, then a legal protection should be requested.

d) In order not to face a denial of the right of CO alone, you can ask for the support of the specialty council or other colleagues, to make joint decisions.

e) In the case of resident physicians, who can also exercise the right to CO, it is good that they receive support from their university of origin, since they are the most vulnerable due to their youth and inexperience. In addition, there are cases of pressure from the hospital institution to perform procedures that go against their conscience, such as an abortion, as a professional apprenticeship. But this can be learned perfectly well by performing therapeutic curettage in spontaneous abortions, which are about half of the abortions in a hospital. It is not necessary to learn it with a voluntary interruption of pregnancy, whose objective is not to save a life, but to end the life of one of the patients.

It is important to protect the objector’s right to privacy, to determine whether he/she should communicate his/her CO only to the authorities of the institution where he/she works or whether it should be done publicly, which would not be appropriate. If a government regulation were to require professionals to register their position on CO for a procedure, for example, for abortion, given that the vast majority would object for scientific reasons and for reasons of ethical coherence with respect to the purpose of their profession, it would be logical to register only those who are in the minority. In the case of abortion, it would be the non-objectors, since it was shown in Mexico City that, when the law on elective abortion up to 12 weeks was passed, around 88.5% of the physicians and health personnel in thirteen hospitals declared themselves objectors ⁽³⁷⁾. Finally, it should not happen that non-medical politicians try to restrict CO in any country, and that health personnel do not come forward to give their professional opinion, since, if they do not do so, they may be blamed for their failure to appear.

Finally, regarding the documents that must be submitted to request a CO, the objector will submit a letter addressed to his superior, indicating his name, profession or specialty, professional cell number (which must be attached in a simple copy), job position, clinic where he provides his services, area where he works, and full details of his address to receive notifications and documents. Next, you must request to be excused from participating in a series of medical acts (you must specify the medical procedure, program, activity, practice, treatment, method or research, which causes you a conflict of conscience), for being contrary to your freedom of thought, conscience and religion. Finally, you must indicate that: All this, without detriment to my professional commitment to the medical institution you represent, as well as the best disposition on my part so that we can find together the provision of an alternative service, which is compatible with my area of knowledge and experience, and is equivalent in time to the act or conduct objected to, with the aim of finding a balance in the workload with my colleagues.