“Se prestarsi, o no”: Conscientious Objection and Regulatory Gaps in Medically Assisted Suicide

Abstract

Judgment No. 242 of 2019 of the Italian Constitutional Court brought to constitutional visibility two structural lacunae of the normative framework governing medically assisted dying: the absence of any structured mechanism of conscientious objection - replaced by an absolute and unaccountable freedom of individual physician discretion - and the failure to
construct a normative bridge to Law No. 219/2017 on informed consent and advance treatment directives. Five years of regional legislative fragmentation have confirmed empirically that neither administrative nor legislative activism at the sub-national level can remedy either lacuna: the first falls within exclusive state competence; the second, even where partially addressed, cannot generate the nationally uniform, foreseeable, and accessible framework that the ECHR's
positive obligations doctrine demands. Read through the two-track jurisprudence of the ECtHR on Articles 8 and 9 ECHR - patient-side obligations running from Pretty through Haas and Mortier; physician-side obligations originating in Bayatyan - both lacunae generate distinct international duties that Italy has so far refused to discharge. The article's central theoretical contribution is the reconceptualisation of conscientious objection from a domain of absolute individual moral sovereignty - in which the physician's lex poli silently nullifies the patient's lex fori - to a chorological practice: an institutionally structured third space in which incommensurable value systems encounter each other without either colonising the other. Two complementary legislative instruments - a statute integrating Law No. 219/2017 with a structured conscientious objection mechanism, and a national procedural protocol supplemented by regional clinical
ethics boards - are proposed as the minimum adequate response to Italy's constitutional and international obligations.