The Claim for An Institutional Identity in Healthcare Activities: the Italian Case

Abstract

1. PRELIMINARY REMARKS

On 11 July 2021, in his Angelus, given during the days he was hospitalized, Pope Francis strongly reiterated ‘the importance of Catholic healthcare institutions’ as ‘a precious treasure to be guarded and supported’; and emphasized that ‘their presence has marked the history of the church for their proximity to the poorest, sick people, and to the most forgotten people’.¹

Although churches have a long tradition of providing high-quality and open-to-all healthcare, in the present day, they are struggling to carry out their healthcare apostolates, which are part of their mission, and to maintain their charitable vocation and religious identity.

Many charitable healthcare institutions devoted to healthcare were set up as a genuine expression of a religious mandate. Currently, the preservation of their religious ethos requires dealing with a ‘web of relationships’,² which includes the founding religious order (which imposes its set of values on the facility as its own apostolate), patients (whose personal choices are given increasing relevance in therapeutic decision-making), practitioners (claiming for their therapeutical freedom), the State (as faith-based facilities are strongly dependent on governmental financial intervention, which implies various kinds of public control over health delivery and compliance with state-imposed technological and structural requirements), as well as a ‘highly competitive market’,³ where they are compelled to become part of sophisticated delivery networks in order to comply with new technologies, marketing strategies, and standards of efficiency. In the Italian legal system, changes in the legislative framework, the decrease of financial resources available, and the transition of health delivery from a welfare model to a system which emphasizes competition between public and private providers, combined with new compelling ethical challenges (namely, the unrestrainable evolution of medicine and technology enabling medical procedures and clinical treatments that are increasingly clashing with religious values), are acting as stress tests for the survival of faith-based health facilities.

They are currently entrapped between the search for financial viability, efficiency, and competitiveness, together with the expectation to participate in the healthcare public delivery (enjoying the advantages related), and the need to preserve their religious identity and their religious set of values. ⁴

Particularly, faith-based health facilities are facing an increasing risk of an erosion of the ‘safeguard clauses’ they have traditionally enjoyed, due to the evolution of civil law regulating ethically controversial issues, which is increasingly taking its distance from the religious approach,⁵ undermining the traditional religious accommodation granted to faith-based healthcare institutions.

Focusing on the Italian legal context, as a case study, the current article will investigate on whether, in a new threatening legal, cultural, and financial scenario, a faith-based health provider may still decline to directly provide health services in contradiction with its religious ethos.

In Italy, although the need for an explicit recognition of an ‘institutional objection’ has been raised by influential scholars,⁶ no legal text has adopted the above-mentioned term. However, under a religion-friendly constitutional regime, the legal framework has traditionally emphasized the special role of religiously affiliated hospitals and in 1978 granted them a right to be exempted against the application of a law introducing abortion, in contradiction with their religious tenets. However, given the weakening of the Catholic influence on policy-making, recent legal changes, aimed at accommodating new social expectations, have provoked a change of paradigm, and a fall of the above-mentioned deferential system. Recent statutes have adopted a ‘non-toleration’ model, which implies denying all health institutions, both public and private, any right to be exempt from delivering newly legalized health practices and reducing access to public funding.⁷

So, this article aims to explore the feasibility of a third path, halfway between complete immunity and strict non-tolerance, and the ability to reconcile institutional identity with competing individual claims, with a view to preserving the ‘healing ministry’ of faith-based healthcare institutions.⁸ The creation of a ‘middle ground’ space for religiously-aligned institutions is important firstly because of their historical relevance within Italian public health delivery and secondly to guarantee the implementation of an effective ethical pluralism in compliance with the constitutional framework.

2. THE IDEA OF ‘INSTITUTIONAL CONSCIENCE’: AN OVERVIEW

In an age of culture wars, the claim for a religious identity of faith-based institutions has increasingly been framed as a claim for an ‘institutional conscience’, giving rise to vibrant academic debate.⁹ Such an issue has been extensively analysed from a philosophical view, provoking a polarized debate: on whether institutions can be considered as ‘moral agents’.¹⁰ From a legal viewpoint, many scholars emphasize the individual nature of conscience, and that legal persons do not have a conscience.¹¹ Other scholars resort to the argument of ‘analogy’,¹² as the real issue is, whether institutions can be ‘granted’ ‘conscience rights analogous’ to those acknowledged to individuals, as their mission and values are comparable to individual ‘deeply held beliefs’.¹³

We cannot ignore that the acceptability of an institutional conscientious objection finds support in Resolution no. 1763/2010 approved by the Parliamentary Assembly of the Council of Europe, which extended to institutions a kind of conscience clause: ‘no person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason’.

However, in the European Convention on Human Rights (ECHR) context, the issue of whether the protection provided by Article 9 of the Convention can be extended to cover the ‘conscience’ of institutions is still controversial. The European Court of Human Rights (ECtHR) case law has been traditionally reluctant to recognize a right to conscientious objection and has focused only on its individual dimension. For the very first time, the ECtHR linked the right to conscientious objection with the coverage granted by Article 9 in Bayatyan v Armenia,¹⁴ mirroring the accommodationist approach adopted in Article 10, paragraph 2, of the Charter of Fundamental Rights of the European Union. The latter article guarantees a right to conscientious objection ‘in accordance with the national laws governing the exercise of the right’. So conscientious objection is acknowledged as a fundamental right and a key aspect of religious freedom and domestic authorities are charged with the task of regulating how it can be carried out.

According to some scholars the protection of an institutional conscience underlies an interpretation of Article 9 in conjunction with Article 11, which should guarantee a certain degree of ethical autonomy to religiously affiliated organizations and ethos-oriented companies, with a view to strengthening the protection of the conscience of individuals who found, promote, and compose the organization concerned.¹⁵ Indeed, freedom of conscience and the values of pluralism, tolerance, openness would be deprived of their essence if individuals’ convictions could not find support in institutions which embody their religious convictions, ideas and values.¹⁶

However, since 2000, although the ECtHR has reiterated on many occasions that the protection of the collective dimension of religious freedom of churches is a key aspect of pluralism in democratic societies and is at the core of the protection of religious freedom guaranteed by Article 9, it has not extended the language of conscience to institutions.¹⁷

3. THE PROTECTION OF ETHOS-EMPLOYERS IN THE EU AND IN THE ECHR FRAMEWORK

The most thought-provoking question is whether the use of the rhetoric of the institutional conscience is an easy path to avoid the real problem: whether and to what extent institutions may establish their activities in compliance with a specific set of values.¹⁸ Academics have adopted different approaches to justify the protection of an institutional ethos, connecting it with the ‘history, heritage and practices associated with an institution’¹⁹ or considering these organizations as ‘channels of externalization of individual fundamental rights’ and of support for the ‘conveyance of religious-ethical-moral values’, for the sake of ideological pluralism.²⁰

So the issue overlaps with the never-ending debate about the scope of the protection of the ethos organizations and its problematic extension to new controversial corporate actors.²¹

Mirroring the German approach, Directive 2000/78/CE allowed states to preserve their legislation on ethically based organizations, granting them robust protection against anti-discrimination regulation in the workplace.²² In its most recent version, the Directive made more ‘flexible’²³ the class of entities benefitting from an exemptionist regime against general anti-discrimination provisions in the workplace. It included all organizations adopting ethical views in their activities on the basis of beliefs and convictions (Article 4.2). So, a faith-based health facility can be considered to be an ethos-oriented enterprise²⁴ as affiliated with a church having a specific approach to ethical issues.²⁵ The Directive provided that religious organizations and ethos employers can ask their employees to perform their tasks adopting an approach of ‘good faith and loyalty to the ethics of the organization’, accordingly with the link between their duties and the mission of the organization, affecting the evolution of domestic regulation.²⁶ Although the scope and limits of the exemption are still controversial in the judicial discourse of the Court of Justice of the European Union (CJEU),²⁷ the intent of the Directive is to guarantee ‘respect’ to the ‘constitutional identities of the Member States’, in accordance with Article 17 of the Treaty on the Functioning of the European Union (TFEU).²⁸

In 2018, the scope of the directive was the object of litigation before the European Court of Justice. Although the Court solicited companies to a strict compliance with the standards grounded in Article 4.2 of the Directive, it reiterated that the application of anti-discrimination law cannot go so far as to interfere with the institutional freedom of the institution, whose employees are charged with the task to conveying the values which are at the core of an institution’s mission and finally invoked the standard of proportionality.²⁹ Indeed, medical activity ‘involves participating in determining the ethics of the church or organization in question or collaborating to its mission of proclamation, or the conditions in which said activity must be exercised, such as the need to ensure credible representation of the church or organization outside of it’.³⁰

Furthermore, we cannot ignore that the ECtHR ‘borrows’ the notion of ethos-employer from Directive 2000/78/CE.³¹ The ECtHR gave a significant contribution to the clarification of the scope of the protection of an ethically oriented enterprise³² which can result in the imposition of restrictions on its employees’ rights. Such duties of loyalty are not limited to first-order religious institutions (religious communities), to clerics in the name of the autonomy of a church,³³ or to the staff of an educational institution, whose employees are in charge of the specific task of disseminating the religious doctrine,³⁴ or to the case when the religious affiliation is an occupational requirement to guarantee the coherence of the teaching with the religious tenets.³⁵ In a milestone decision,³⁶ concerning the dismissal of a doctor in a Catholic clinic, the court upheld the domestic decision. Indeed, because of his duties of loyalty, the employee had to refrain from making statements on the media in contradiction with the ethical views of his employer. In its latest decisions,³⁷ the Court struggled to scrutinize the necessity, adequacy, and proportionality of the burdens imposed on both parties, with a view both to avoiding unacceptable restrictions of individual freedom, and unreasonably compromising the autonomy and specific identity of ethos employers. Giving relevant weight to the specific circumstances of the case, the ECtHR focused on the role and specific tasks of the employee in order to assess whether they imply a ‘leading position’ within the organization or an ‘increased external visibility’, giving rise to stricter duties of loyalty, in order to protect the identity, mission, and credibility of the organization.³⁸

4. THE COLLECTIVE DIMENSION OF RELIGIOUS FREEDOM IN THE CONSTITUTIONAL FRAMEWORK

Focusing on the Italian legal system, the acceptability of conscientious clauses to protect the religious identity of faith-based institutions has to be analysed not only within the analysis of their legal regime and its evolution but also within the constitutional system of Church–State regulation. There is a complex constitutional architecture granting broad protection of the corporate dimension of religious freedom, which includes equal freedom of all religious denominations (Article 8.1) self-governance of churches (Articles 7.1 and 8.2) and bilateralism (Articles 7.2 and 8.3). Indeed, the constitution preserved the earlier regime of cooperation (1929 Pacts) with the Catholic Church and extended it to certain other denominations which entered into bilateral agreements (the so-called ‘Intese’) with the State (Articles 7.2 and 8.3 of the Constitution), being accommodated their specific religious needs ‘in advance’. So, since 1929, Church–State relations in Italy have been regulated through the method of bilateralism. Such a method has shaped state relations with the Catholic Church. In 1929 the Italian State and the Catholic Church signed the Lateran Pacts not only to rule the so-called ‘mixed matters’ but also to mutually reinforce their powers. However, the language of the1984 Agreements showed a significant change of paradigm: secular and religious authorities struggled to reconcile the preservation of specific identity aspects of faith groups with a robust coherence with the constitutional values, in the pursuit of the ‘good of the person’ (Article 1 of the Agreement). As the method of bilateralism in the regulation of Church–State relations enjoys constitutional coverage, agreements cannot be unilaterally amended by the state without a prior Church–State bilateral agreement (eg Articles 7.2 and 8.3 of the Constitution). So, a procedure of constitutional amendment is not required whenever both parties agree on changes. This constitutional structure prevents an exclusion of the Catholic Church and other faith communities, which entered into an agreement, from political decision-making affecting their status and specific legal regime. Thus, the recognition of religious pluralism is supported by the acknowledgement of a broad protection of the collective dimension of religious freedom (Article 19) and by the prohibition of any discrimination against religious entities because of their religious nature and aims. However, there is a clear gap between a broad acknowledgement of equal freedom to all religious communities (Article 8.1) and the limited number of faith communities which negotiated agreements with the state under Article 8.3. Such a system of management of religious pluralism results in according broader protection to religious communities that entered into an agreement with the state, due to the lack of a general law regulating religious freedom and aimed at implementing constitutional guarantees for all faith communities, regardless of the conclusion of an agreement with the state. In the wake of the constitutional preservation of a regime of Church–State cooperation, and of the Church–State agreements, although religious entities are established according to the rules of a religious system, they enjoy civil recognition in the secular legal framework. So, preservation is granted to the religious identity and faith-based goals of religious institutions, which can enjoy the status of civilly-recognized religious entities, even preserving their link with the hierarchy. In this view, religious organizations have been traditionally engaged in secular activities. Due to the enforcement of bilateral ‘safeguard clauses’, such activities have been regulated by secular law (employment relationships, tax regime) which should ordinarily regulate their non-religious activities³⁹ enjoying a specific protection of the structure and the aims related to their religious affiliation.⁴⁰ As an example, the recent reform of non-profit legislation has given religious entities the opportunity to carry out their charitable activities under the civil law regime regulating non-profit organizations.⁴¹

The introduction of the principle of subsidiarity (Article 118) integrated the robust constitutional protection of religious freedom, giving rise to a significant revisitation of the interplay between the ‘public’ and the ‘private’ sphere, with a view to enhancing the role of all social actors in the delivery of public services. Furthermore, the principle of subsidiarity opens a new dimension for the application of Article 20, according to which religious entities can be neither discriminated nor legally targeted with regard to their establishment, tax regime, and activities because of their religious identity.

Therefore, the accommodation of claims of faith-based institutions has to be investigated within a positive approach to secularism, implying religious promotion rather than exclusion from the public space, even in its collective dimension.⁴²

5. THE STATUS OF FAITH-BASED HEALTH FACILITIES

In Italy, religious denominations (the Catholic Church, the Waldesian Church,⁴³ and the Jewish communities⁴⁴) have traditionally owned and managed health facilities within a complex health delivery system which has integrated public and private resources.⁴⁵ Religious denominations can opt to carry out healthcare activities setting up private facilities (ie clinics and residential care) or to participate more strictly in public health delivery.⁴⁶ Although such faith-based facilities deliver healthcare services and take part in the National Healthcare System, in many cases they are not juridical persons legally separated from the founder religious entity. With a view to fully implementing the constitutional framework (Article 32),⁴⁷ and pioneering the introduction of the constitutional principle of subsidiarity, the aim of the 1968 legal framework was to set up a pluralistic healthcare system, where public and private actors could take part, with a view to delivering healthcare services. Specifically, the option to access the status of ‘classified hospitals’⁴⁸ has traditionally been a mechanism provided by the Italian legal system, with a view to recognizing the important role played by religious institutions in the healthcare field, and giving rise to significant advantages, even in terms of maintenance of their religious identity. Since 1968, the hybrid status of ‘classified hospitals’, has allowed faith-based facilities to navigate a complex reconciliation between the preservation of their legal and administrative autonomous regime with their participation in the newly established National Health Service.⁴⁹ The adoption of such a deferential legal approach was due both to their special nature and regime under the Agreements, giving special protection to their structure and aims, and to their deeply-rooted role in the healthcare delivery. However, although their ‘equivalent’ role has been acknowledged⁵⁰ with a view to promoting their contribution to healthcare planning,⁵¹ the intent of the lawmaker has never been to convert classified hospitals into public health facilities.

The special status of religious healthcare institutions has been preserved regardless of significant changes in healthcare legislation in 1978 (establishment of a National Health System)⁵² and in 1992 (overhaul of the health delivery system).⁵³ Indeed, since the 1990s, the Italian public healthcare delivery has been affected by a deep financial crisis, due to the increase of healthcare costs and the decrease of public resources available to meet all patient’s demands. This has led to a need to rationalizing and reorganizing public healthcare delivery, revolving around ‘regionalization’ (empowerment of Regions), ‘federalization’ (establishment of a federal system), and ‘corporatization’ of hospitals, along with the enforcement of a Diagnostic Related Group system of public reimbursement for the delivery of health services.⁵⁴

Therefore, since 2000, faith-based health facilities have navigated two conflicting political–legal approaches concerning public healthcare delivery.

On one hand, the Constitutional Reform (law no. 3 of 2001) of Title V of the Italian Constitution, aimed at underlining subsidiarity as a key principle reshaping the sharing of jurisdiction between the state, local, and regional authorities, (‘vertical subsidiarity’) and at revisiting the interplay between public and private actors, with a view to emphasizing the role and the contribution private actors can provide in the implementation of social rights (‘horizontal subsidiarity’).

In the wake of the Reform, not only did religiously affiliated systems preserve their incorporation into the National Health System under the regime of ‘classified structures’ but also become key actors in the implementation of the constitutional duty of solidarity (Article 1.16, legislative decree no. 502/1992).

So, Regions provided classified hospitals with financial resources, reimbursing them on a fee-for-service basis for the health services they delivered, on an equal footing with public facilities, granting reimbursement for health services exceeding the maximum expenditure established in their agreements.⁵⁵

On the other hand, the increase of the national debt, and the reduction of public resources allocated for healthcare have provoked a pressing need for a revisitation of a universalistic Welfare model. As such a model was no longer financially sustainable, it underwent a transition towards a model which emphasized the competition between public and private facilities⁵⁶ where the standards to allocate public resources were changed with a view to prioritizing public facilities.

In 2008, the mechanism of regional reimbursements was altered by law and provoked a disparate treatment between public and classified structures, to the detriment of the latter, whose treatment was uniformed to the other private facilities with regard to the remuneration for the delivery of health services.⁵⁷

Those legislative changes gave rise to sharp litigation. Since the latest health reform, classified hospitals have no longer been equalized to public and classified health facilities with regard to the reimbursement of health services (with the exception of delivery of emergency treatments, if there are no other facilities available in the Region)⁵⁸ and to public compensation of their financial deficit, and have been assimilated to other private facilities. Courts demonstrated increasing scepticism towards the regime of administrative autonomy that faith-based facilities have traditionally enjoyed, in contradiction with the idea of subsidiarity which shaped the 2001 Constitutional reform.⁵⁹ Such a judicial approach has been recently upheld by the European Court of Justice.⁶⁰ The financial crisis urges religious institutions to search for new operational solutions to manage healthcare facilities, as that compensation of financial deficit could put at risk the assets of the legal person owing the property of healthcare facilities.⁶¹ So new creative ways are being explored to carry out their apostolates, which can result in establishing health networks between facilities in order to implement an integrated delivery of health services, new partnerships, new ways of organization, and management of their health facilities, with a view to preserving the ‘ethical tension’⁶² which should guide them. ⁶³

6. THE REGULATION OF ABORTION AND THE DEFERENTIAL LEGAL APPROACH TOWARDS FAITH-BASED FACILITIES

The deep financial crisis faith-based institutions are undergoing intersects with new ethical challenges, due to an increasing ‘process of dissociating culture from religion’.⁶⁴ As the idea of ‘what is good’⁶⁵ no longer complies with mainstream religions’ views, certain ethically controversial practices, which in the past were ‘tolerated’ as mere ‘exceptions’ under specific circumstances, have been gradually decriminalized and even converted into state-funded health services a patient has a right to claim.⁶⁶ The gradual erosion of the traditional rights/exemptions balance⁶⁷ has acted as a stress test for the scope and limits of legal protection of conscience provided in the Italian legal system. In this new scenario, as faith-based institutions refuse to provide certain services, they are increasingly perceived as a ‘barrier’ to the full implementation of newly introduced health services, to the detriment of a patient’s new rights.⁶⁸

It must be said that in Italy, although the constitutional framework does not expressly provide a right to conscientious objection, the constitutional protection of the right is based on a joint interpretation of Articles 2, 19, and 21 of the Constitution.

In coherence with the European Charter, Article 10, conscientious objection is regulated with regard to specific situations (abortion, military service, etc). However, new ethical issues emphasize a concerning asymmetry between situations where conscientious objection is regulated by law and cases where conscientious objection is still lacking a regulation.⁶⁹

Some scholars raised the question of whether conscientious objection requires legal regulation or whether the constitutional framework is sufficient to guarantee protection to new conscientious claims.⁷⁰ On the other hand, in the field of healthcare, an over-expansion of conscientious objection, even in its institutional dimension, is perceived as a threat to the effective implementation of a patient’s will.⁷¹

The key issue of whether abortion and assisted dying can be qualified as rights for patients and as medical acts for practitioners has given rise to a never-ending polarized debate between conservative and progressive approaches,⁷² and to sharp reactions of the Catholic Church, which emphasized that new medical practices are crimes, in contradiction with divine law.

Nowadays a new view of health has increasingly taken hold, which encompasses the global well-being of the individual. We cannot ignore that the same definition of ‘medical act’ has become extremely controversial. As is known, in the US scenario, the judicial pro-abortion approach⁷³ has been recently overturned by Dobbs v Jackson Women’s Health Organization, emphasizing a fragmented state approach on the issue.⁷⁴ Although European states have traditionally adopted a more cautious approach on the issue, merely decriminalizing certain practices under certain conditions, they have not reached a uniform solution.⁷⁵ However, a dangerous political trend is gaining momentum, aimed at redefining the frontiers of medical acts, in order to incorporate ethically controversial practices.⁷⁶ Such a state approach implies a significant revisitation of the same notion of health and medical treatments, which in many cases goes alarmingly beyond the opinion of the relevant professional associations.⁷⁷ Since 2001 the Italian National Committee of Bioethics has underlined the risk of a threatening weakening of the distinction between medical acts and therapeutical treatments (ie aesthetical surgery).⁷⁸ The Catholic Church was concerned about a dangerous transition from a ‘medicine of needs’ to a ‘wish -fulfilling medicine’.⁷⁹ So the use of language should gain a significant weight. Moreover, the use of the same term (health, medical service) in the case of non-universally accepted practices and treatment against cancer (which is ‘at the centre of medicine’)⁸⁰ raises doubts in terms of legitimacy and appropriateness, as the notion of necessity, in opposition to a patient’s mere wishes should play a significant role. Nowadays, a categorization of ethically controversial practices among medical acts gives rise to deep concern, and ethical committees strongly invoke a clear distinction between medical acts and mere health acts.⁸¹ On the issue, some commentators suggested a notion of medical treatments, limited to those implying an improvement of the quality of life.⁸² Others propose a stricter notion, distinguishing medical acts from ‘socio-clinical acts’, which are ‘on the periphery of medicine’ and merely aimed at ‘satisfying’ a patient as a ‘consumer’: such a distinction should have relevance even in terms of recognition of the legitimacy of conscientious objection.⁸³ In this view, commentators argue that a medical act has both a ‘technical’ and a ‘moral’ dimension: as the two components cannot be separated without undermining the most genuine purpose of medicine, a broad margin of appreciation should be reserved to professional choices.⁸⁴

Furthermore, there are complex multi-factor clinical situations which could give rise to various ‘conscientious judgements’ and ‘variable’ medical decisions (ie pregnancy due to rape and fetal malformation).⁸⁵ Although certain legislations have been more inclined to justify abortion under certain circumstances, in such a grey area there cannot be categorical ethical answers.⁸⁶ This approach is due to the consideration of the extreme vulnerability of women and the need to protect them from excessive pain.⁸⁷ However, as the legitimacy of abortion under these circumstances is extremely divisive, a robust protection of conscience should be guaranteed to protect ethical pluralism.

With specific regard to the Italian legal scenario, the notion of ‘medical act’ is far from being unambiguous. Although Italian practitioners claimed a legal definition of ‘medical act’, with a view to clarifying their powers and responsibilities, the Italian lawmakers have failed to do so until today.⁸⁸ The law no. 24/2017 provided a broad definition of medical treatment, including ‘health services for preventive, diagnostic, therapeutic, palliative, rehabilitative and legal medicine purposes’. However, definitions are provided by relevant professional associations, which are reluctant to abandon the traditional, mainstream religiously-oriented view of a ‘medical act’.⁸⁹ Nevertheless, in Italy abortion was legalized in 1978 (law no. 194/1978) in certain circumstances, as a result of a complex compromise between conflicting political forces, which struggled to negotiate a legal response reconciling competing interests. The lawmaker achieved a striking balance between the right of women to health with the right of the unborn child to life. Catholic commentators emphasized that, in the judicial language, the expression ‘right to abortion’ has never been used.⁹⁰ A woman can ask for the termination of a pregnancy during the first trimester, whenever childbearing, birth, or motherhood could undermine the mother’s physical or mental health, with regard to her health, economic, social, or familial condition, the circumstances of conception, and the presence of foetal malformations. After this term, abortion is permitted only when childbearing represents a serious risk for a woman’s life or health.⁹¹ Abortion is considered a therapeutic act, as it is only allowed when it affects a woman’s physical or mental health. She has to consult a health facility, a counselling centre or her regular doctor. The provider concerned will assess the circumstances underlying her decision and inform her about all the possibilities available, before issuing a certificate and requiring the termination of pregnancy. Before the release of the certificate, the provider involved has the task to try to remove the reasons underlying a woman’s decision to terminate her pregnancy and to promote any action required to provide her with support during and after her pregnancy. After a seven-day period of reflection since the issue of the certificate, a woman can access abortion in any healthcare facility which provides this service.

The 1978 legal framework provided conscientious objection as an individual prerogative of the health staff. Furthermore, it guaranteed a kind of institutional ‘conscience clause’ through an accreditation system which faith-based health facilities took advantage of. According to Article 8 of the law no. 194/1978, if the governing body of the institution does not apply to be accredited to perform abortive practices, the institution will not be able to provide such a health service.⁹²

The text of Article 8 was the outcome of a sharp parliamentary debate about whether institutional conscience might be protected.⁹³ The key issue was whether religious hospitals, as integrated into the public health delivery, had to provide abortive services, regardless of their religious values, or whether the ‘institutional dimension of religious freedom’⁹⁴ should be given priority. We cannot underestimate that in 1978, the Catholic Church was still ‘an essential voice of the political discourse’.⁹⁵ So, the lawmakers were prone to reconcile the introduction of ethically controversial health practice with the specific status of faith-based healthcare institutions, with a view to preserving a ‘democratic public space’.⁹⁶ According to scholars, the provision did not clarify the right of faith-based institutions to claim for an institutional objection once and for all, but prevented the rise of litigation.⁹⁷

However, case law has gradually restricted the scope of the provision on individual conscientious objection, limiting the medical activities covered by it and the employees who can claim to be exempted. Such a more restrictive approach to conscientious objection has aligned with European standards, which underlined a woman’s right to self-determination with regard to abortion, which States have to guarantee in an effective way⁹⁸ and with the establishment of a robust link between a woman’s autonomy in her reproductive choices and her right to privacy.⁹⁹ Actually, the high number of conscientious objectors has given rise to a lack of effective access to abortive services in certain geographical areas. Not only did the inability of the lawmaker to provide effective solutions generate increasing scepticism towards the accommodation of conscientious claims but it also provoked the condemnation of Italy for failing to provide effective access to services for pregnancy termination.¹⁰⁰ So, the caution of the Italian law-maker in regulating new kinds of conscientious objection is due to the high risk that an accommodation of conscientious claims would result in a substantial denial of the access to health services in certain geographical areas, as occurred in the case for abortion.

7. THE LEGALIZATION OF END-OF-LIFE CHOICES AND THE NON-TOLERANT APPROACH TOWARDS RELIGIOUS INSTITUTIONS

The increasing secularization of civil society, the gradual weakening of a shared ethos, and the rise of claims of self-determination with regard to choices affecting procreation and end of life, have provoked a progressive dismantlement of the traditionally accommodationist approach to conscientious objection, increasingly perceived as an undeserved privilege.¹⁰¹

In 2017, the law no. 219 opened new therapeutic options. Its enforcement occurred in a new legal, cultural, and cultural scenario, due to the need to respect an increasing ethical pluralism and a weakening of the Catholic influence on public policies. The paradigm shift passed through a troubled legal evolution, whose main steps were the introduction of new legal actors aimed at protecting the rights of the most vulnerable patients (the administrator of support), fierce judicial litigation aimed at expanding the notion of medical act, which pioneered new responses in contradiction with the tenets of the Catholic doctrine, the establishment of the principle of self-determination as a fundamental right of the individual, on the basis of a joint interpretation of multiple provisions of the constitutional text, the regulation of palliative treatment. Most of all, although the judicial discourse reiterated the priority of the right to life as a supreme value and a leading fundamental right, the scope of Article 32 of the Italian Constitution has been revisited, incorporating a ‘negative freedom’ for individuals to refuse specific health treatments, even life-sustaining treatments.¹⁰² The new regulation focused on the informed consent which is at the core of the ‘therapeutic alliance’ between the practitioner and the patient, and regulated living wills, which give patients the option to determine in advance therapeutical treatments related with the terminal phase of life. In coherence with the ECtHR’s approach, which granted states a broad margin of appreciation on ethical issues, the law did not acknowledge a ‘right to die’. A patient has the mere option to determine in advance the interruption of life-sustaining treatments such as artificial nutrition and hydration (which are qualified as medical treatments under Article 1.5) and heavy sedation (Article 2) (deemed as a kind of palliative treatment) through a living will, if specific conditions are met (informed consent of the patient, incurable disease in an advanced state, imminent death, presence of refractory symptoms).

In the newly enforced legal framework opting-out clauses are no longer provided for private institutions and even the legislative recognition of individual objections is still the object of academic debate.

Indeed, Article 9 of law no. 219/2017 provides that each healthcare facility, public or private, has to guarantee the full implementation of the law through its own organizational methods, ensuring the necessary information for patients and adequate staff training, with no exemption. Although the Ministry of Health promised to negotiate the way the law will be implemented in faith-based institutions with the parties concerned with a view to implementing guidelines preserving conscientious objection, the persistent gap in in-force legislation has generated concern.¹⁰³

Apparently, the new law has determined a transition from a deferential to a ‘non-tolerant’ legal approach toward faith-based health facilities,¹⁰⁴ disregarding the special regime regulating classified hospitals, which should be aimed at giving them the possibility to operate their charitable apostolates without renouncing to their religious goals and identity.¹⁰⁵

Furthermore, they should enjoy the status of ethos organizations, which under the current legal framework should be granted an exemptionist regime against general laws regulating employment relations, and whose ideological set of values is an essential aspect of their identity and mission.¹⁰⁶

The key issues are whether participation in the delivery of a public service implies that the government can significantly restrict the autonomy of a faith-based institution,¹⁰⁷ and whether and to what extent, a full participation of faith-based apostolates in public healthcare delivery can imply religious institutions to adjust their identity claims with a view to meeting claims for therapeutical freedom of the staff and patients’ claims for accessing ethically controversial services.

In many Italian Regions, faith-based institutions operate within complex public–private integrated systems. They enjoy agreements with Regions and their activity is incorporated within the regional health programming. If a religious organization refuses to provide health services upon a patient’s request, can a Region revoke the agreement with the institution concerned, with a devastating impact on its financial viability?

The gap between the current legal protection of conscientious objection and the expansion of the frontiers of legitimate medicine has been emphasized by a 2019 controversial ruling of the Italian Constitutional Court which expanded the boundaries of the legitimacy of assisted suicide. Moving beyond the current legal framework, the Court found Article 580 of the Italian Criminal Code, which banned assistance in suicide, as partially unconstitutional,¹⁰⁸ ruling out the criminal responsibility of the person who:

facilitates the execution of intention of suicide, autonomously and freely formed, of one person kept alive by life-sustaining treatments and suffering from an irreversible pathology, source of physical or psychological suffering that he/she deems intolerable, but fully capable of making free aware decisions, provided that such conditions and methods of execution have been verified by a public structure of the national health service, following the opinion of the territorially competent ethics committee.

As the Court did not go so far as to introduce a right to assisted dying, it sidestepped the issue of the enforcement of a duty upon the medical staff, which would have raised ethical concerns for many practitioners. Indeed, in ruling no. 242 the Constitutional Court held that there is no obligation upon the medical staff to participate in assisted dying. Although the court acknowledged that a practitioner cannot be considered criminally responsible if he facilitates termination of life of a patient, in compliance with a patient’s free and informed decision, a clinician cannot be compelled to participate in an action clashing with his own convictions.

However, the above-mentioned judgment urged the lawmaker to give clear guidelines with regard not only to the eligibility standards for access to new controversial health services but also to the scope and limits of conscientious objection of the health staff and the institutions, with a view to clarifying who has to deliver such services and which facilities are available. However, after the failure of a referendum on the issue of assisted dying, legislative procedures are still in progress.

8. NAVIGATING THE CONFLICT BETWEEN COMPETING CLAIMS

According to the Resolution no. 1736/2010 which granted institutions a right to opt out from abortive practices, institutional conscience cannot enjoy absolute immunity. Given the disproportionate impact that an ‘unregulated use of conscientious objection could have on women’, the Parliamentary assembly imposed the responsibility on the states to guarantee ‘that patients are able to access lawful medical care in a timely manner’.

So, States are solicited to ‘develop comprehensive and clear regulations’ with a view to reconciling three competing interests: ‘the right to conscientious objection in connection with the participation with medical activities, the right of patients to receive appropriate treatment, the rights of patients to be informed about any conscientious objection and referred to another provider’.¹⁰⁹ Such an approach has been strongly reiterated in Resolution 2215/2021, which emphasized the importance of abortion as a human right. So conscientious objection of the healthcare staff (and of institutions) cannot interfere with a woman’s right to abortion, and States are urged to implement mechanisms to avoid conscientious claims undermining access to the service.

Following a similar view, the ECtHR strove to mitigate the impact of conscientious claims on the effectiveness of healthcare care delivery, with a view to preventing its impact on the rights of patients. As is known, the ECtHR has usually adopted a balanced approach in cases concerning the management of religious diversity, on the basis of the standards of legitimacy, necessity, and proportionality. Where a less restrictive alternative is available, which allows the public interest to be satisfied without impairing freedom of conscience, the restriction cannot be considered as ‘necessary in a democratic society’. Furthermore, the link between the means used and the aim pursued guarantees the contested measure, provoking unnecessary or disproportionate restrictions of religious freedom.¹¹⁰ The underlying intent is the search for a harmonization of competing rights, with a view to preferring solutions guaranteeing the exercise of the rights concerned to the maximum degree possible, without unduly sacrificing their essential core, given the relevant role they play in a democratic and pluralist society.¹¹¹ In cases concerning abortion, taking into account the lack of an European consensus on ethical issues, the ECtHR has struggled to avoid an over-expansion of conscientious claims¹¹² and has given a significant weight to a ‘third-party centric factor’¹¹³ while preventing the rhetoric of third-party burdens from reducing ideological pluralism.¹¹⁴ Most of all, the ECtHR has required states to organize and manage health delivery with a view to reconciling the exercise of conscientious objection with access to reproductive services. Although States are granted a broad margin of appreciation, the ECtHR emphasized that a state is charged with the positive duty to adopt positive measures, in terms of implementation of public mechanisms that mitigate the impact of conscientious objections with a view to rendering the service effective and equally accessible in an alternative way.¹¹⁵ Conscientious objection would not imply patients being impaired in access to the health services they ask for if the government implements appropriate adjustments to the public health delivery system as a whole. The ‘fungible’¹¹⁶ nature of health services should facilitate the task of States to achieve legal solutions of compromise. Where other health facilities are available to provide ethically controversial services, there is room for multiple convictions, values, and beliefs in the healthcare delivery system.¹¹⁷ In any case, a state’s inability to organize public health delivery properly should not result in imposing to faith-based institutions to renounce to their identity, which witnesses a state’s inability to reconcile competing interests.¹¹⁸

The need for a ‘striking balance’¹¹⁹ has been urged by the European Committee of Social Rights which considered that the current Italian system results in an ineffective access to abortion in certain geographical areas. It solicited the State to render the service available guaranteeing the presence of a number of non-objecting practitioners sufficient to provide the service and emphasized the duty upon states to enforce laws which effectively balance the right to conscientious objection with access to health services.

We cannot ignore that in various Extra-European legal contexts, legislations navigated these conflicts granting coverage to the ethos of institutions. Since 1973, in the wake of the milestone decision Roe v. Wade,¹²⁰ in the US legal context, the Church Amendments have been enforced as a legal response, with a view to guaranteeing conscientious objection to practitioners and institutions against the legalization of abortion.¹²¹ However, the scope and limits of such ‘conscience clauses’ are undergoing a stress test and show their inadequacy against new claims.¹²² Certain legal systems have succeeded in adopting legal solutions which accommodate the ethos of religious institutions, if certain conditions are met.¹²³ Substitute services to mitigate the cost of the accommodation have been imposed, burdening the institution in some way with the ‘cost’ of the objection. However, in some cases certain less objectionable services could be perceived as ‘illicit cooperation’ by the institutions concerned.¹²⁴

In any case, the co-existence of multiple consciences (the staff, the governance, the owners, the patients) in the healthcare setting cannot be underestimated with a view to calibrating the avoidance of both excessive burdens on third parties and the impairment of the ‘essence’ of a fundamental right.¹²⁵

Moreover, in various legal contexts case law has often pioneered new creative solutions,¹²⁶ anticipating political choices, and demonstrating that conscientious claims of institutions can be accommodated through complex mechanisms which reconcile the competing interests concerned, and annul the costs of an accommodation, shifting the latter on independent third-party actors, and even expanding the right to build a corporate conscience to for-profit undertakings.¹²⁷

9. IS A NEW BALANCE NEGOTIABLE IN THE ITALIAN CONTEXT?

Although European boards have provided guidelines, they have still left a significant margin of discretion to States with regard to the regulation of institutional conscientious objection. Democratic processes are the most appropriate arena where the dynamics between competing sets of values should be managed.¹²⁸

In Italy, a regulation is strongly required to negotiate a new balance between competing claims, with a view to preventing a drastic transition from the provision of an exemptionist regime in favour of religious health providers to the risk of a categorical ‘non-toleration’ regime, in contradiction with pluralism which should shape a democratic society.¹²⁹ Indeed the current legal framework shows a worrying gap between the introduction of new ethically controversial health services and the principles which define the Italian constitutional approach to religious freedom in its institutional dimension. Indeed, the Italian law-maker should find a reasonable balance between the competing interests within a model of positive neutrality, with a view to managing ethical pluralism democratically.

In a pluralist model, given the lack of a shared ethos on what is ‘legitimate medicine’ and which are its boundaries,¹³⁰ the right to ‘moral disagreement’ should be strongly guaranteed.¹³¹

In order to facilitate the coexistence of multiple sets of values, public policies should avoid ‘the imposition of a particular value system’, in the pursuit of an unworkable moral uniformity.¹³² As a pluralist society would gain a lot from the ‘dynamism of their dissenting voices’,¹³³ the introduction of ethically controversial therapeutical practices should be counterbalanced by appropriate relevance acknowledged to conscientious claims of those whose beliefs and convictions prevent their participation in activities linked with life termination with a view to preserving ethical pluralism.¹³⁴

A genuinely pluralist approach toward diversity¹³⁵ should reconcile the introduction of new health services with the acknowledgement of appropriate space for all ethical views concerning the beginning and the end of human life. In this view, the protection of the right to conscientious objection should be perceived not as a privilege, or a way to change the legal framework in-force, but as a reasonable accommodation of diversity.¹³⁶ Such a view is coherent with an approach to neutrality as inclusion of various ethical and religious approaches in political decision-making, providing them with ‘equal respect’.¹³⁷ as they promote cultural debate and establish a ‘repository for potential worthy reforms’.¹³⁸ On the contrary, conditioning the participation of faith-based facilities in public healthcare delivery on their renouncing their religious ethos would result in weakening pluralism which should shape a democratic society.

Such an approach would be coherent with the Italian constitutional approach aimed at promoting the role of religion in the public space, even in its collective dimension. Indeed, ethical pluralism is consistent with the acknowledgement of a collective dimension of religious freedom. As faith communities are acknowledged with religious freedom they should not be deprived of the effective possibility to ‘pursue their definition of good life’.¹³⁹ Such a ‘shared narrative’ is the unifying factor which ties together individuals working in the institution, as such core values shape their professional life, with a view to implementing an alternative view of healthcare based on ethical–religious ideals.¹⁴⁰ Institutional freedom provides them with significant protection of their commitment to pursue the shared goal of promoting an ideologically oriented view of healthcare.¹⁴¹ Their freedom would be violated if they were prevented from acting in compliance with their beliefs.¹⁴² So, if the ‘integrity’ of the institution is compromised, harm would be suffered by those who are part of the institution, as their intent to implement a view of healthcare on the basis of their ‘understanding of morality’ would be frustrated.¹⁴³ Moreover, patients who look for health services coherent with their convictions would lose trust in institutions infringing their core values.¹⁴⁴ In this view, faith-based health institutions should be perceived not as a barrier but as driving forces, as they grant that appropriate and alternative services to individuals requiring health services in line with their beliefs be available. It goes without saying that the distinctive nature of the Italian constitutional and legal scenario should play a key role in formulating legal responses to the so-called culture wars. The Italian constitutional framework is far from imposing an ‘assertive’¹⁴⁵ approach to secularism as it aims to promote religious freedom in its individual and collective dimensions. Furthermore, the Italian context, which has had a unique religious constitutional history of Church/State cooperation, has not only traditionally resulted in a higher level of protection of the institutional dimension of religious freedom but has also enhanced the opening of ‘channels of communication’¹⁴⁶ between public and religious actors, in the pursuit of a ‘material and spiritual advancement of society’.¹⁴⁷ In this view, religiously affiliated institutions (not only Catholic) have traditionally given an important contribution to civil society as a whole, without being forced to ‘renegotiate their identity’.¹⁴⁸ With regard to religiously affiliated hospitals, the recognition of a specific regime has traditionally witnessed a state recognition of their vital role in the healthcare delivery system. The method of bilateralism in the regulation of Church–State relations has guaranteed to religiously affiliated hospitals a specific status in the Italian legal system. They have participated in public health delivery without being assimilated into public and private facilities, with a view to preserving their identity, mission, history, and charisma. For decades, this framework has guaranteed a specific exemptionist regime to Catholic faith-based institutions, carrying out secular activities against generally applicable provisions which could undermine their institutional ethos, structure, and purposes (under Article 7 of the Agreement). So they have traditionally availed of a broad margin of autonomy in shaping their healthcare activities to their religious commitments and recruiting staff members adhering to or sharing their tenets. For many years a medical cultural tradition influenced by Catholicism gave rise to a legislative reluctance to take distance from mainstream religions’ ethical approaches. Nowadays lawmakers and courts are moving towards providing responses to new social expectations. The new legislative non-tolerant approach towards faith-based healthcare facilities clashes with the Church–State bilateral agreements (Article 7 of the Agreement) as it does not provide clauses safeguarding the special nature and aims of these institutions, regardless of the constitutional coverage which should govern the Church–State relations.

On this point, some commentators have warned that public policies should avoid the adoption of assimilationist approaches (which would deter religious organizations from participating ‘in the pursuit of shared goals’).¹⁴⁹

Furthermore, scholars have frequently reiterated that in the Italian context a promotional treatment should not be reserved only for religious groups which entered into agreements with the state, to the detriment of an implementation of an effective religious pluralism.¹⁵⁰ So, faith-based institutions affiliated with religious groups which did not enter into an agreement with the state should be extended a comparable protection of their religious ethos. This approach should be workable on the basis of the broad constitutional coverage acknowledged to religious freedom (Articles 19 and 20 of the Constitution), which should be fully implemented through appropriate regulation.¹⁵¹

However, the solid protection of a collective dimension of religious freedom should be counterbalanced by measures aimed at mitigating their implications on those who do not share the same religious values.¹⁵² Thus, a system of ‘democratic checks and balances’ should be guaranteed, for the sake of the ‘democratic character and social solidarity’ of the health delivery service as a whole.¹⁵³ According to the ECtHR’s guidelines, the neutrality of a system is eroded both if it refuses ‘a degree of non-neutrality on the part of private persons’¹⁵⁴ and if it enables conscientious refusals without ‘correct[ing] the asymmetries’¹⁵⁵ generated by an accommodationist regime, namely ‘leaving care out of reach for people who need it’.¹⁵⁶

So, the acknowledgement of a ‘qualified’ right to objection¹⁵⁷ would imply that conscientious vindications should not result in significant costs for patients, whose rights to health services should be guaranteed. In a pluralist regime, the key challenge is to mitigate the cost of accommodation taking into serious account its impact on relevant public interests and preventing the burdens on third parties, especially patients who do not share the same beliefs. Such a result requires states parties ‘to make resources available’, ‘introduce the operational procedures necessary’ and take ‘adequate measures’ to guarantee the effectiveness of the service.¹⁵⁸ In the Italian context, the impact on patients can be minimized through the implementation of sophisticated mechanisms of cost-shifting, as agreements between regional authorities and health providers, aimed at accommodating the claims of faith-based facilities and avoiding that conscientious refusal prevents patients from obtaining health services.¹⁵⁹ As an example, in France, public authorities carefully balance the accommodation of religious health institutions with the assessment of a sufficient availability of non-objecting providers to meet the regional needs.¹⁶⁰ Furthermore, third party authorities could be established to identify in advance health facilities where practitioners are available to perform new practices, to guarantee appropriate information on services available in each facility and to allow patients to get health services avoiding undue delays.¹⁶¹ Such a mechanism would prevent the rise of a causal link between the objecting institution and the alleged illicit practice, as religious providers will be merely required to notify the third-party authority the rise of a conscientious conflict. In this way, religious hospitals could reconcile their duty to provide health services with their specific religious claims.

Such an approach would neither imply a categorical religious immunity nor the exclusion of dissenting voices from the political debate, but would promote a pluralist debate, in coherence with the European guidelines, with a view to establishing an inclusive model of coexistence of multiple ethical approaches. Indeed, this approach would be coherent with the Italian Constitutional Court’s reasoning which did not recognize conscientious objection as a categorical right. Instead, the lawmaker is charged with the task of carefully balancing conscientious claims with the duties of political, economic, and solidarity grounded in Article 4 of the Constitution, with a view to safeguarding the pursuit of public interests and the interests of others and to providing an ‘equal commitment’ to them all.¹⁶²

This type of solution should not be considered applicable exclusively to the Italian constitutional scenario.

In every pluralistic and democratic system, a fair share of tolerance should be granted to various ethical approaches. As was said before, in certain contexts where a separationist approach governs Church–State relations (ie the US scenario), but a robust constitutional protection has been granted to religious freedom, whenever controversial medical practices have been legalized, conscience clauses have been traditionally aimed at protecting not only practitioners but also ethically and religiously oriented institutions.¹⁶³ The US case shows how, for decades, the doctrine of ‘reasonable accommodation’ has been adopted as a legal or judicial technique to prevent ‘ex ante’ or to solve ‘ex post’ the conflicts between generally applicable laws and religious claims for exemptions.¹⁶⁴ In the wake of new culture wars, commentators have suggested new creative approaches which could fit into a separationist scenario, with a view to reconciling conflicting interests.¹⁶⁵ So, every ‘healthy’ democratic pluralistic legal system should guarantee a right to diversity, both to individuals and to institutions ‘with fundamental moral commitments’, providing ‘legal mechanisms for individual [and institutional] release from compliance with the rule’.¹⁶⁶ In any case ‘basic standards’ should govern the space accorded to conscience: the ‘immediate risk of serious illness, injury or death to the patient’ should set the boundaries of tolerance towards conscientious objection in healthcare in a pluralistic society.¹⁶⁷

10. THE INTERPLAY BETWEEN INSTITUTIONAL ETHOS AND THERAPEUTICAL FREEDOM: WHOSE CONSCIENCE SHOULD PREVAIL?

The ethos that leads the activities of a religiously affiliated health facility may have an impact on a practitioner, and his right to ‘dissent’.¹⁶⁸ As assistance in dying has been progressively decriminalized, if a religiously affiliated hospital organizes in a way that excludes assisted suicide from its services, can it prevent its practitioners from providing the service if required?¹⁶⁹ In some European legal contexts, therapeutical freedom enjoys robust legal protection, which cannot be restricted by a health-facility, even a faith-based institution.¹⁷⁰ In the US context, after the Dobbs judgement,¹⁷¹ which allowed states to restrict access to abortion, there is a rise of ‘positive’ claims of conscience of practitioners who wish to deliver ethically controversial services for ‘moral reasons’, regardless of an institution’s or a state’s restrictions, and complain of being subject to a disparate treatment compared to objecting clinicians who refuse to provide services .¹⁷²

Since 1990, focusing on the tension between individual and collective rights, the Italian lawmaker has provided ethos employers with legal protection,¹⁷³ and faith-based facilities have been traditionally included.¹⁷⁴ Although case law has often witnessed the inadequacy of the legal framework, resulting in the lack of uniform judicial responses,¹⁷⁵ it has shown a gradual transition from the idea of institutional immunity to a more complex balance between collective and individual claims. The search for a reasonable balance between competing rights implies that an employee cannot be forced to shape all aspects of his life to the ethos of his employer.¹⁷⁶ In the wake of the legislative implementation of the European guidelines, the Italian judicial discourse has gradually aligned with the CJEU parameters,¹⁷⁷ according to which the imposition on an employee of higher duties of loyalty has to meet the standards of ‘legitimacy’, ‘necessity’, and ‘justification’.¹⁷⁸ However, we cannot ignore that medical activity ‘involves participating in determining the ethics of the church or organization in question or collaborating to its mission of proclamation, or the conditions in which said activity must be exercised, such as the need to ensure credible representation of the church or organization outside of it’.¹⁷⁹ So, on the basis of the CJEU standards, a practitioner can be subject to reasonable limitations of his therapeutical freedom, which he contractually accepted, for the sake of the freedom of the institutional identity of the faith-based facility.

Indeed, an unconditional protection of therapeutical freedom should not become a ‘tyrant’ and be given absolute priority to the detriment of other clashing rights,¹⁸⁰ as it would erode the freedom of faith-based communities to ‘act socially’ in coherence with their religious values.¹⁸¹ The ‘associational interest’ of a ‘cohesive group’¹⁸² founded on a ‘shared commitment’¹⁸³ to carry out their services in compliance with a specific ethical approach regarding the beginning and the end of life deserves proper consideration. A faith-based health institution is constituted by individuals who commit themselves to carrying out health activities in compliance with a shared set of values and a specific mission, in the pursuit of a faith-based view of the genuine meaning of healthcare and of the ‘common good’.¹⁸⁴ So, healthcare professionals in faith-based institutions should ideally ‘share a normative judgment’,¹⁸⁵ and ethically-committed employees could raise a conscientious claim against therapeutical decisions which undermine the institutional identity and mission and their own ethical commitments.¹⁸⁶

11. THE NEED FOR A RESTORATION OF THE PRINCIPLE OF SUBSIDIARITY

In the Italian context, the issue of accommodation of the institutional objection of faith-based hospitals requires a revisitation of the public/private interplay, combining ethical pluralism with the constitutional principle of horizontal subsidiarity, which grants religious providers the opportunity to serve as providers of social rights, in the pursuit of the common good. The implementation of an effective subsidiarity means that religious providers should not be subject to a disparate treatment compared to their secular counterparts and should enjoy the advantages related to the status of providers of public services. Could a classified hospital, through entering into public health delivery, be expected to ‘abide by the State’s conception of healthcare’, as if it adhered to an ‘implied contract’ (and be subject to withdrawal of their accreditation, in case of refusal)?¹⁸⁷ Indeed, faith-based facilities have never camouflaged their identity.¹⁸⁸ Their aim is to promote an alternative view of healthcare combining charitable healthcare with compliance to their ethical–moral values. The intent of the lawmaker has never been to convert them into public facilities. So, public policies should avoid a standardization of the regime of healthcare structures through a rigid public/private division to the detriment of the significant role faith-based facilities have traditionally played in the system of public health delivery, their deep-rooted presence in certain regional contexts, their ability to adjust to changes and to participate in shared goals, such as the promotion of common good, human dignity, protection of the person as whole, and charitable support to the poor. Instead, faith-based hospitals should be considered as a third necessary pillar of the Italian healthcare system, combining free-of-charge access to healthcare with efficiency and effectiveness in the use of human, financial, and technological resources and counterbalancing the opposing ‘powers of the state and the market’.¹⁸⁹ Neither can they be assimilated to for-profit undertakings, whose purpose is to sell goods and services with a view to satisfying the wishes of a patient increasingly converted into a consumer, nor to ‘state agents’, required to render available all the health services a state has decided to legalize.¹⁹⁰ Their purpose is not to ‘make civil society a competitor to the state’ but to operate as a ‘complimentary force’ in order to contribute to an effective pluralistic delivery of public services.¹⁹¹ Furthermore, their closure or the abandonment of their charitable mission would affect the healthcare supply as a whole, to the detriment of the public, especially the most vulnerable classes of individuals, who will undergo a reduction of their ability to receive health services. So, a unique balance has to be preserved between their inclusion and their autonomy, namely between the public nature of the healthcare services delivered and the private juridical personality of faith-based healthcare providers, whose charitable work is made available to civil society as a whole. On the contrary, forcing a faith-based institution to choose between the maintenance of its identity and participation in public health delivery would imply unduly penalizing it because of its identity and violating its institutional freedom which is grounded on the ideas of religious pluralism and democracy.¹⁹²

In this view, the pursuit of an effective subsidiarity should imply the promotion of an ‘interactive model’¹⁹³ between public and private religious facilities, with a view to implementing integration, cooperation, the establishment of networks between entities having disparate nature and legal regime, joining forces and enhancing a mutual transfer of activities and services. Coordination between health providers could enhance a health delivery which fully meets the needs of certain geographical areas and guarantees continuity of care. Faith-based institutions may play an integrative, complimentary, or subsidiary role with regard to the public system, even covering those health needs that the public system neglects. This implies a delegation of public activities and services to religious providers, but also the opposite, when private institutions cannot provide certain services, even for religious–moral reasons, developing an integrated web of healthcare and a two-way flow of patients. Furthermore, the establishment of partnerships would allow financial and technological resources, facilities, research and training to be shared, avoid duplication of services, with a view to enhancing the ‘operational sustainability’ of the health delivery as a whole.¹⁹⁴

Certain Regions have already pioneered implementation of public and religious actors’ ventures with the purpose of providing a broader, more integrated, efficient, and high-quality health delivery to the local population, without undermining the ethical ideals of faith-based institutions. In some cases, solutions of compromise have been reached which allow religious groups undergoing financial crisis to transfer their property without weakening the identity of their healthcare apostolate.¹⁹⁵

However, not only does the above-mentioned approach require appropriate funding of the public healthcare delivery and effective healthcare planning but also mutual transparency, namely sharing information, decisions and policies concerning strategies in health planning to implementing a genuine subsidiary cooperation and to building a real welfare society.¹⁹⁶

Finally, accommodation of conscientious claims should be a two-way street which requires faith-based hospitals to play their part. Currently, although religious hospitals enjoy an autonomous status, they can no longer enjoy full immunity. Dealing with external (public agencies, other health facilities) and internal (staff, managers, patients) influences, they have to develop a dialogue and search for new operational solutions, even though struggling to maintain the core values of the institution. As is known, religious facilities are increasingly resorting to cooperation and integrated management of health services between institutions in order to face the financial crisis and new creative solutions are being developed.¹⁹⁷ However, ‘institutional consolidation’¹⁹⁸ should not give rise to ‘blocking positions’, namely it cannot generate religious monopoly governing the healthcare market and hindering the public’s ability to have access to a certain service, for the sake of patients’ access to services.¹⁹⁹ Furthermore, institutions enjoying an accommodation of their religious identity should fully ‘disclose’ that their services are ‘governed’ by a religious set of values in coherence the mission of the institution,²⁰⁰ which should be ‘clearly communicated to patients, employees and the public at large’.²⁰¹ In this view transparency and timely information would guarantee the rights of patients, who should be provided with full knowledge about health services which will be refused, and to employees who should be aware that their therapeutical freedom will be restricted, and to what extent.²⁰²

So, a depolarization of ethical issues should lead to establish a healthcare network aimed at enhancing interaction and dialogue between all actors concerned in public health delivery, in the pursuit of shared goals (promotion of common good, human dignity, protection of the person as whole, and charitable support to the poor) while granting ethical pluralism in medicine and broadening patients’ medical options.²⁰³ A fair cooperation between public and faith-based facilities should be promoted with a view to guaranteeing free choices of citizens and enhancing all social actors’ contribution to the implementation of the public health delivery, in the pursuit of the common ground of providing a ‘reasonably fair allocation’²⁰⁴ of health resources which guarantees their appropriate availability to those in need.²⁰⁵

Footnotes