In 2012, the International Planned Parenthood Federation – European Network (IPPF-EN) filed a collective complaint to the European Committee of Social Rights claiming that because a high number of health care personnel in Italy refused to provide abortion-related care on the grounds of conscience, the Italian abortion law’s guarantee of women’s right to access abortion procedures was rendered ineffective. IPPF-EN asserted that this situation amounted to a violation of the right to protection of health pursuant to Article 11 of the Revised European Social Charter.
IPPF-EN referred to the official state data which reflected that, nationally, about 70% of gynecologists, 51% of anesthesiologists and 44% of non-medical staff refused to provide abortion-related services in 2009. In some regions these rates were even higher and many hospitals did not provide abortion at all due to the lack of abortion service providers. According to IPPF-EN, the measures that had been taken by the respective authorities in response to the high number of objecting personnel had failed to adequately ensure that women throughout the country could effectively access abortion care in all circumstances permitted under the Italian abortion law.
IPPF-EN further claimed that the failure of the competent authorities to effectively address shortcomings in abortion service provision due to the high number of objecting providers resulted in intersecting forms of discrimination against women based on their geographic location and/or socio-economic status, as well as on grounds of gender and health status, in violation of the Charter’s Article E (prohibition of discrimination).
The Committee held Italy to be in violation of the right to protection of health under Article 11 of the Charter. According to the Committee, the provision of abortion care as provided under the national legislation falls within the scope of the right to protection of health and the state parties are required to give full effect to this right. This includes allocating available resources, introducing necessary operational procedures, and preventing unnecessary delays in the provision of health care. In light of this, the Committee held that:
The provision of abortion services must be organised so as to ensure that the needs of patients wishing to access these services are met. This means that adequate measures must be taken to ensure the availability of non-objecting medical practitioners and other health personnel when and where they are required to provide abortion services, taking into account the fact that the number and timing of requests for abortion cannot be predicted in advance.
In addition, the Committee noted that the problems that women encounter in accessing abortion care cannot be adequately remedied by judicial or administrative authorities after the fact. Such remedies are insufficient, by themselves, to fulfill states’ primary obligation under Article 11 “to make health care available as it is needed, which applies with particular force to time-sensitive procedures such as abortion.”
The Committee found that the Italian authorities failed to take steps to ensure effective implementation of the abortion law in practice. It considered that a number of problems had arisen as a result of the ineffective implementation of the law combined with the high number of objecting medical personnel. These included a decrease in the number of health facilities where abortions are carried out nationwide; a disproportionate relationship between requests for abortion and the number of available non-objecting providers within a facility; a high number of objecting providers refusing to provide care prior or following abortion; and women facing excessive waiting times in accessing abortion services. The Committee held that the measures the authorities had taken to regulate the high numbers of objecting medical personnel had been inadequate in guaranteeing effective access to abortion services throughout the country.
The Committee additionally held that the state’s failure to ensure effective access to lawful abortion care resulted in intersectional discrimination on the basis of gender, geographic location, social and economic status, and health status, in violation of the principle of non-discrimination (Article E) in conjunction with the right to protection of health. The Committee recognized that due to the lack of non-objecting providers in a number of health facilities, women were forced in some cases to travel within Italy or abroad in order to access care, potentially incurring substantial economic costs. It added that “the time factor is also crucial: women who are denied access to abortion facilities in their local region may in effect be deprived of any effective opportunity to avail of their legal entitlement to such services. . . .”