(4 April 2026)

Constitutional Court Judgment No. 42 of March 27, 2026[1] addresses the delicate balance between the protection of healthcare personnel’s freedom of conscience, the guarantee of the principle of equality in access to public office, and the need to ensure the effective provision of healthcare services provided for by Law No. 194 of 1978, situated within the broader context of tensions between the protection of fundamental freedoms and regional legislative autonomy.

The ruling stems from the challenge, brought by the President of the Council of Ministers, against Article 2, paragraph 3, of Sicilian Regional Law No. 23 of June 5, 2025[2]. The appeal is based on a specific interpretation of the law, according to which the law, by requiring that healthcare and hospital facilities ensure, within the framework of “standard” recruitment procedures, the presence of non-objecting staff in functional areas dedicated to voluntary termination of pregnancy and, where necessary, to implement appropriate procedures to reinstate such staff, would ultimately introduce, albeit implicitly, forms of selection reserved exclusively for that category of healthcare workers.

Such an interpretation, if upheld, would entail the introduction of a subjective requirement in addition to those provided for by state legislation, with possible discriminatory effects against conscientious objector candidates and significant repercussions on the constitutional principles governing equality and access to public employment. Furthermore, the provision would conflict with the fundamental principles of Law No. 194 of 1978, which recognizes conscientious objection in broad terms, allowing for its exercise even during the employment relationship.

The Constitutional Court does not, at this preliminary stage, rule out the plausibility of this interpretation, noting that it finds some basis in the literal wording of the challenged provision[3]. However, the Court states that, if this were the only possible interpretation, the regional regulation would have to be declared unconstitutional. In that case, in fact, it would introduce an impermissible exception to the principle of open competition, encroach upon the State’s exclusive authority regarding the determination of fundamental principles of healthcare, and conflict with the framework of Law No. 194 of 1978, which does not provide for the possibility of holding competitions reserved solely for those who are not conscientious objectors. It is no coincidence that the Court characterizes this scenario as «entirely exceptional within the state legal system», emphasizing its admissibility only in the presence of an express provision in state legislation.

In order to avoid this outcome, the Court employs the technique of “constitutional-conformity-oriented” restrictive interpretation, identifying an alternative reading that shields the provision «from all the alleged defects of constitutional illegitimacy». According to this interpretation, which is also supported by the Sicilian Region in its statement of defense, Article 2, paragraph 3, of Regional Law No. 23 of 2025 does not alter the procedures for accessing public employment, which remain open and undifferentiated, but merely establishes an internal organizational requirement within healthcare and hospital facilities, aimed at ensuring the proper functioning of the units dedicated to voluntary termination of pregnancy. From this perspective, the designation of “non-objector” is relevant exclusively during the staff assignment phase, without amounting to a selective requirement capable of restricting the operator’s freedom of conscience, which is essentially required to be declared at the time of hiring.

Moreover, the mere provision of a “restricted” recruitment process would not in itself guarantee the effective provision of the service, considering that even personnel hired through ordinary selection procedures could subsequently declare conscientious objection, rendering ineffective any preventive restriction based exclusively on the non-objection requirement.

On an operational level, the decision marks a significant shift in the focus of public action, orienting it toward flexible organizational and managerial criteria that allow for reconciling a woman’s right to health with the right to conscientious objection. The effective delivery of healthcare services cannot be achieved through the ex ante selection of staff based on individual beliefs, but must be ensured through flexible organizational and managerial tools, such as internal mobility, the use of contractual forms of collaboration, shift scheduling, and, more generally, dynamic human resource management models that ensure a balance between conscientious objectors and non-objectors. In this way, the healthcare administration is called upon to effectively achieve a balance between fundamental rights, thereby strengthening its functional and public-service role.

The guidance provided by the Constitutional Court in Judgment No. 42 of 2026 is also set to have a significant impact on the assessment of the legality of competitive recruitment notices reserved exclusively for non-conscientious objector physicians, even when adopted by healthcare agencies at the behest of or with prior authorization from regional authorities. This context includes the case of the San Camillo Forlanini Hospital in Rome, emblematic of the use of selection procedures aimed at ensuring the presence of non-objecting staff in voluntary termination of pregnancy services, yet simultaneously subject to the critical issues highlighted by the Court regarding compliance with constitutional principles on access to public employment[4].

In conclusion, Constitutional Court Decision No. 42 of 2026 is of significant systemic importance, as it reaffirms the centrality of the principle of solidarity, rigorously defines the limits of regional legislative intervention, and identifies the organization of public services as the primary means of ensuring the effective exercise of rights, while maintaining their mutual balance.

Caterina Gagliardi

[1] The text of the judgment can be found at https://www.cortecostituzionale.it/scheda-pronuncia/2026/42.

[2] Regional Law No. 23 of June 5, 2025. Provisions on Health Care, Art. 2, Paragraph 3: «Health and hospital authorities, as part of the standard recruitment procedures already provided for in the three-year staff requirements plans, shall staff the functional areas referred to in paragraph 1 with suitable personnel who are not conscientious objectors. If, as a result of the termination of employment or subsequent objection by personnel recruited pursuant to this paragraph, healthcare and hospital agencies are left without non-objecting personnel, they shall initiate appropriate procedures to replenish the functional areas with non-objecting personnel, within the limits of available staffing levels, within 120 days of the date of submission of the declaration of objection or the termination of the employment relationship».

[3] In this regard, the Court notes that «this interpretation, which is not contradicted by the preparatory work, could in fact be supported by the use of the indicative mood ‘dotano’ in the first sentence of the contested provision, which would seem to provide for the hiring of non-objecting personnel and, therefore, refer to recruitment through a competitive selection process, and in the provision of the second sentence, which refers to personnel ‘recruited pursuant to this paragraph’».

[4] I am permitted to refer to Caterina Gagliardi, Equality of Freedoms and Conscientious Objection to Abortion, in Diritto e Religioni, 1, 2018, pp. 187–198.