Conflicts of Conscience
in Health Care:
An Institutional Compromise
Holly Fernandez-Lynch
Cambridge, Mass.
The MIT Press 2008
TABLE OF CONTENTS
Full Text
The Book
Introduction
Conflicts of Conscience in Health Care was
published in 2008 as the 24th volume in the Basic
Bioethics series from the Massachusetts Institute of
Technology. It is an American book dealing with the
American political and legal controversies over
freedom of conscience in health care. However, the
discussion of the American experience by Holly
Fernandez Lynch is relevant elsewhere, since the
United States has the most extensive and varied
network of protection of conscience legislation in
the world.
While acknowledging that freedom of conscience is
of concern to all health care workers and
institutions, Fernandez Lynch focuses exclusively on
physicians.1
This carefully and deliberately restricted focus is
one of the strengths of the book.
After a preface and introduction, discussion and
argument occupy about 260 pages, supplemented by 53
pages of end notes, many of which offer expanded
comment on the text. A good 12 page index has been
included, as well as four pages of cited statutes
and cases. The earliest source found in a list of
300 references is from 1951; the rest date from 1972
to 2007.
Goal
The author introduces her subject with a
statement from Pope John Paul II:
. . . to refuse to take part
in committing an injustice is not only a moral duty,
it is also a basic human right. Were this not so,
the human person would be forced to perform an
action intrinsically incompatible with human
dignity, and in this way human freedom itself, the
authentic meaning and purpose of which are found in
its orientation to the true and the good, would be
radically compromised.2
Fernandez-Lynch does not argue from a Catholic or
even religious perspective. Nonetheless, she
describes this as "a powerful statement about the
nature of conscience, complicity in morally
objectionable actions, and avoidance of injustice."
She adds that it is generally acceptable to
religious and nonreligious people alike, regardless
of their political views.3
This reflects the spirit in which she pursues her
project. As the subtitle of the book indicates, she
is seeking a compromise that will provide "maximal
liberty for all parties."4
She believes that freedom of conscience for
physicians and the provision of legal medical
services are both important social goals, and that
they are not incompatible.5
Thus, she rejects "all-or-nothing" strategies that
seek "total victory."6
Ultimately, quoting the Protection of Conscience
Project,7
she affirms that all legitimate concerns can be met
by "dialogue, prudent planning, and the exercise of
tolerance, imagination and political will."8
Context of
the discussion
The author recognizes that she writes with the
abortion controversy more or less continuously in
the background. But she insists - correctly, in the
Project's view - that "limiting the debate to tired
abortion rhetoric could be quite dangerous if it
prevents meaningful discussion" of broader issues.9
Referring to a number of other controversial issues
and the impact of ongoing technological
developments,10
Fernandez Lynch predicts that these, combined with
"increasing diversity of health-care providers" have
"the potential to create a perfect storm."11
Overview
The shape of the compromise proposed by Fernandez
Lynch can be outlined while describing the book's
structure. It consists of three main parts.
The first reviews American protection of
conscience laws and examines four paradigms of
medical professionalism.12
The author selects one of these paradigms -
physician as gatekeeper - as most suited to the
compromise she seeks.13
In Part II, Fernandez Lynch explains what she
believes to be the source of the current
controversy. Applying the professional model of
physician as gatekeeper, she observes that an
objecting physician may sometimes be the only
available "gatekeeper" who can open the gate to a
desired service. Her solution: tell patients about
other gates and gatekeepers, redistribute them, and,
if necessary, provide more gates and more
gatekeepers.14
Or, to paraphrase anti-euthanasia activists, if
access is the problem, eliminate barriers to access,
not objecting physicians.
To accomplish this, the author suggests that a
designated institution ensure access to services
through effective distribution of health care
resources and connect patients with willing
physicians.15
Hence, the subtitle of the book: an institutional
compromise. Fernandez-Lynch identifies state
licensing boards as the institutions best placed to
accomplish this. The last two thirds of the book
describes how the compromise might be implemented in
practice.16
It includes a model statute and extended discussions
about calculating patient demand and meeting it
through the supply of willing physicians.
THE
STRUCTURE OF THE COMPROMISE
Compromise can be defined as a solution that is
equally unacceptable to all parties, and the author
recognizes that her proposal may be viewed in that
light.17
She also warns that "no compromise . . . can fix
every problem for every party."18
Fernandez Lynch identifies two key conditions for
compromise: avoiding harm to patients,19
and ensuring "access to desired services,"20
including a guarantee of access to abortion,21
whether for medical or social reasons.22
She suggests that the public will support freedom of
conscience for objecting physicians as long as the
services to which they object can be obtained
elsewhere.23
Indeed, she describes concerns about patient access
as lying "at the very heart of the conscience clause
debate."24
But if patient access is the heart of the
issue, why compromise with objecting physicians?
The author asserts that physician freedom of
conscience provides important social goods, that the
costs of suppressing it would outweigh the benefits,
and that denying it to physicians might actually
diminish patient access to services.
Before turning to these arguments, one should
note what the author identifies as "the driving
force and strongest argument" for preserving freedom
of conscience for physicians.25
One word sums it up: ignorance. More specifically,
the ignorance consequent upon moral pluralism -
which she celebrates-
26 and her view - but by no means hers alone -
that "no one has special access to knowledge about
what is right and wrong."27
Fernandez Lynch admits that if we do not know
what is truly right and truly wrong, we cannot
accuse an objecting physician of wrongdoing. Her
clarity on this point is refreshing.
If we cannot be completely sure that
we have
gotten it right . . . there is a distinct
possibility that the refusers are
right, leaving no legitimate grounds on which to
exclude them from the profession. The problem is
that we often just do not know.
(emphasis added)28
That is because, she says, the moral questions
involved often cannot be answered by "empirical
testing or any other comprehensive doctrine for
distinguishing right from wrong."29
In this situation, the just and prudent course,
she argues, is to preserve moral diversity by
protecting freedom of conscience. She believes that
this will ensure a continuing debate within the
medical profession, inspired by the collision of
conflicting ideas, thus helping us to avoid error
and to identify "the most accurate version of moral
truth."30
Moral diversity in the profession offers another
potential benefit. Fernandez Lynch suggests that
"patients may prefer to be treated by physicians
with similar values." Physician-patient matching
based on shared values would minimize the likelihood
of conflict, and might well contribute significantly
to meeting patient needs.31
This can be understood as simply another aspect of
culturally competent medical practice.
Consistent with this, she would prohibit ethical
profiling of applicants for medical school; moral
objections to procedures would not be grounds to
deny admission or to set admission quotas. Nor would
willingness to perform controversial procedures be
an advantage; she does not approve of selective
recruiting. Instead, she would (with rare
exceptions) leave the profession equally open to
all, regardless of beliefs.32
In addition to what might be called the argument
from ignorance, Fernandez Lynch asserts that
physicians cannot be expected to "check their
personal religious and moral beliefs at the door"33
since "the segmentation of one's personality
demanded by secularization may be utterly
impossible."34
Such a policy would turn physicians into technical
automatons who are fully responsive to patient
requests but "detached from potentially appropriate
moral qualms."This, she says, would "corrode the
humanity and compassion patients expect and need
from their doctors."35
Society benefits from having
morally serious people in the profession who are
unwilling to just follow orders and who contribute
to the rich moral debate that helps avoid blindly
accepting the normative permissibility of whatever
is technically possible and has not been legally
prohibited.36
She points out that society has not been well
served by physicians without moral qualms. Consider,
as the author does, the Tuskegee study: almost 400
black men in Alabama, deceived and denied treatment
for syphilis so that physicians could study the
disease.37
Or consider Canadian physicians, who, executing
orders from the Alberta Eugenics Board, sterilized
over 4,500 Albertans purported to be "mentally
defective."38
Some of these people were also used as guinea pigs
in drug tests and as sources of tissue for research.39
Fernandez-Lynch asks the reader to imagine the
consequences if only "morally insensitive"
applicants were admitted to medical practice. It
would, she believes, lead to a shortage of
physicians. And she is concerned that such a policy
could destroy the reputation of the profession. She
warns that people might come to view physicians as
they view lawyers.40
Instead, the author - - herself a lawyer - -
adopts the reasoning of attorney Howard Lesnick:
A polity that encourages its
citizens to bring to bear their own serious moral
reflections on the morally significant decisions
they face will be more likely to grow in justice and
humanity.41
Lesnick argues that the "varying religious
scruples" of individual professionals act as "a
counsel of restraint" in the prevailing pluralist
ethos, and that this has a broader social value.42
Fernandez Lynch identifies a social benefit provided
by objecting physicians as their "counsel of
restraint" in the face of demands spawned by
technological developments.43
She acknowledges that some people consider
patient access to services more important than any
of the goods she describes; they would like to force
objecting physicians out of the profession.44
But she challenges this approach on its own terms.
Suppose that a patient who is denied a service
sues a physician or makes a formal complaint. The
physician would probably continue to refuse.45
If the patient obtains the service at all, it will
be through a willing physician, and it will not be
because of the complaint or lawsuit. The objecting
physician might be suspended or struck from the
register, or leave the specialty or the profession.
In all such cases, access to medical services will
suffer.46
If the real goal is to ensure access to
services, says the author, punishing unwilling
physicians is likely to be counterproductive. If the
real goal is to ensure access - not to punish
objecting physicians - that goal is best served by
connecting patients with physicians willing to help
them.47
She devotes much of the book to explaining how this
might be achieved.
In brief, Fernandez Lynch proposes that the
professional regulatory authority (in the United
States, physician licensing boards in each state),
assisted by other players and stakeholders,
formulate a rational plan to provide adequate access
to defined health care services offered by
physicians within its jurisdiction. The plan would
be based on estimates of demand for the defined
services and the supply of willing physicians.48
Two thirds of the book is devoted to working out
the details of this scheme. The author repeatedly
emphasizes that it is always preferable to solve
access problems by using incentives, not repressive
measures.49
But we are reminded that there can be no
intelligent discussion of concerns about patient
access unless we first define key terms, including
"access," "timely," "prompt," "inconvenience" and
"medical necessity."50
While the author does not make the point, one might
observe that the rhetorical impact of these words
when used in sloganeering is not readily translated
into useful standards of measure. This is also true
of other relevant concepts that she goes on to
examine, among them: "risk,"51
"harm,"52
"need" and "preference."53
Patients having difficulty accessing defined
services for any reason - not just conscientious
objection - would contact the regulatory authority
for assistance. Should the defined service not be
provided - for any reason - a patient could file a
claim for compensation from the regulator - not from
a physician.54
The author argues that this would avoid the
counterproductive effect of punitive sanctions, and
she believes that patients would be compensated for
most denials resulting from conscientious objection.55
Fernandez Lynch notes that a patient who is
successful in a civil case against a physician
receives only monetary compensation. That being the
case, a patient would be no worse off if the money
came from the regulator rather than the physician,
and she believes that a claims system would operate
more efficiently and with less expense than an
adversarial legal process. Moreover, the claims
system would provide a continuing incentive for the
regulator to rectify problems with access. It makes
sense, she says, to make the regulator accountable
in this way, since it has the leverage to address
such problems, while individual physicians do not.56
Professional regulators, in her view, have
several tools at their disposal to ensure access to
services: hotline referral services and websites,57
economic incentives for physicians,58
increasing use of "telemedicine,"59
modification of rules governing inter-jurisdictional
practice, "circuit-riding" doctors, subsidies for
patient travel, the provision of services by
non-physician specialists,60
and encouragement of professional immigration.61
The author suggests that medical schools can
help. They can encourage student interest in
unpopular or controversial services through special
programmes. They might, for example, open clinics in
places where patient access has been a concern.
Citing the impact of legal aid clinics on law
students, the author believes that many medical
students, if exposed to access problems during their
education, would develop professional practices
particularly responsive to patient requests.62
PROTECTION OF
CONSCIENCE
Under the terms of the compromise, objecting
physicians are offered protection on three
conditions: notice, registration, and acceptance of
non-negotiable duties.
Fernandez-Lynch insists that physicians fully
disclose their objections to patients when they
first accept them, reiterate them if they become
relevant to treatment options, and notify patients
if their views change.63
Her model statute extends this obligation to include
notification of "employers, employment agencies, and
labour organizations."64
Objecting physicians would also have to register
with the regulator, listing the services they are
unwilling to provide and the reasons for their
refusal, and update the regulator on any changes in
their practice.65
The regulator would verify the validity and
sincerity of their objections.66
The registry of objecting physicians would
facilitate physician-patient matching and evaluation
of the availability of services.67
All physicians would have to accept what
Fernandez Lynch calls "non-negotiable" duties. There
are four of them. At first glance, all four are
unobjectionable.68
- First: physicians must not engage in what
the author calls "invidious" discrimination.69
- They may object to a procedure or
service for reasons of conscience,70
but not to the patient or the patient's
lifestyle.71
- Second: physicians must give timely notice
of services they will not provide, and timely
notice of changes in their views.72
- Third: physicians must respect the principle
of informed consent by advising patients of all
legal treatment options, including those to
which they object.
- They must provide accurate information
about all options.73
- Fourth: physicians must provide emergency
treatment.74
Referral is not among the author's list of
non-negotiable duties. There is good reason for
this.
Although Fernandez Lynch cites and quotes several
commentators to the effect that an objecting
physician should refer a patient to a willing
provider,75
she also notes opposing arguments,76
and acknowledges that the issue is "among the more
difficult aspects of the conscience clause debate:"
in the words of one clearly frustrated professor,
"absolutely intractable."77
This is because, as Fernandez Lynch acknowledges,
referral imposes "the serious moral burdens of
complicity."78
Fernandez Lynch suggests a range of options when
an objecting physician is asked by a patient for
information about willing providers, acknowledging
that the options involve different degrees of
complicity.79
The least demanding of these is that the physician
should direct the patient to the regulator.80
However, she also suggests that objecting physicians
might be made to do more for "highly vulnerable
patients," like helping them to make an appointment
with a willing provider.81
Under the terms of the compromise, an objecting
physician who fulfilled the requirements of
notification and registration and who discharged the
four non-negotiable duties would be immune from
discipline and civil liability, even if he were the
'last doctor in town' facing a hard case.82
Fernandez-Lynch holds that refusal in such a case
would be a grave breach of professional obligation.83
However, she concludes that it would be a mistake to
try to enforce the duty with punitive sanctions. She
asserts that public denunciation and other adverse
social consequences would be appropriate, but that
the objecting physician should not be disciplined or
sued84
because that would ultimately cause more harm than
good.85
One important point: the author acknowledges that
protection of conscience laws would still be
necessary "in some form, "presumably the kind of law
exemplified by her model statute.86
Project Comment
Introductory
observations
The first point that warrants comment is the
general tone of the book. Fernandez Lynch advises
readers to strive to consider the issues from a
perspective opposite their own, or at least to take
a neutral position, and she adopts this approach
herself. She does not always succeed in this, but
her effort has produced a book that is notably free
of the self-righteousness and rancour one sometimes
encounters in this debate. This should be kept in
mind when considering one of her lapses that is of
particular interest to religious believers.
Some physicians, she says, assert that it would
be wrong for them to do X, but not wrong for someone
else. Sincerely motivated by nothing more than a
personal "idiosyncratic understanding of morality,"
they make no broader moral claims.87
It appears that they attract the author's
sympathetic notice because they do not challenge the
hegemony of moral pluralism.
But Fernandez Lynch seems troubled by physicians
who are adhere to what they consider to be "God's
absolute standards" that apply to everyone. She
observes that they not only refuse to provide a
service they believe is wrong, but say that no one
else should provide it either.88
She seems to agree that this reflects an agenda that
is really "all about the control of others."89
Here the author has fallen into absurdity. Anyone
who believes that something is truly wrong - murder,
for example - will also believe that no one should
do it. The author herself takes exactly this
position with respect to racial discrimination.90
Elsewhere, in a passage that could have been written
by an objecting physician, she asserts, as a matter
of "fact," that "there is never an obligation to
participate in genuine wrongdoing."
It is certainly the case that
no professional obligation could rightfully include
a duty to engage in true moral transgressions,
regardless of voluntary entry into a profession or
the existence of a professional monopoly.91
However, she immediately denies that physicians
should be allowed to act on these principles. That
would, she claims, "permit the physician's
conscience to become a law unto itself" and impose
views on patients "with which they may reasonably
disagree."92
It would seem to follow from the author's
reasoning that a physician must not be forced to
provide a service he believes to be immoral, but
must not be allowed to assess the morality of the
service he is asked to provide. He is free to act on
his conscience - except in questions of morality.
This kind of incoherent conclusion is the result of
the corrosive effect of the author's espousal of
moral pluralism, which precludes any personal
identification of genuine wrongdoing or true moral transgression. What begins as a
high-sounding statement of moral principle at once
dissolves into meaningless cant.
This incoherence also undermines her principal
argument for maintaining moral diversity in the
profession. As noted above, she posits that the
debate engendered by such diversity will allow us to
"siphon out the most accurate version of moral
truth."93
But we cannot recognize "the most accurate
version of moral truth" unless (a) moral truth
exists, and (b) we least have an accurate idea of
what it looks like. If moral truth does not exist,
or if we cannot recognize it, no amount of debate
within the profession will tell us whether or not we
have "the most accurate version" of it.
The most plausible explanation for this lapse is
anti-religious prejudice, if not against religion
generally, then against religions that profess the
kind of moral certitude that the author demonstrates
when she denounces racial discrimination. Her
position seems to be that moral absolutism is
acceptable as long as it does not depend on
religious belief.
Conflicts of Conscience in Health Care has
much to offer, but an attentive reading must take
into account the effects of these two underlying
elements: some form of anti-religious prejudice, and
dogmatic moral pluralism.
Implementation
Fernandez Lynch's extensive discussion of
practical issues is commendable, and she offers what
appear to be novel suggestions. For example, she
discusses how anti-trust law enforcement practices
might be adapted to measure supply and demand in
health care.94
Others can and should consider what she has to say
about this and other things related to
implementation, but comments in this paper are
confined to topics that have special relevance to
preservation of freedom of conscience.
The
institutional compromise
Professional regulators are identified as the
institutions best placed to balance the interests of
physicians and patients. While not beyond criticism,
the suggestion is basically sound. It addresses an
objector's concern about complicity by making
someone else morally responsible for access to a
service. This kind of arrangement has worked
successfully for objecting pharmacists whose
employers have assumed the kind role she proposes
for state boards.95
Referral
Fernandez Lynch correctly identifies perceived
complicity in wrongdoing as the key issue in
referral, a point that other authors often fail to
notice or dismiss with contempt. The author suggests
that objecting physicians should at least direct
patients to the regulator if they are asked to
identify a willing provider. It has not been the
experience of the Project that objecting physicians
would be unwilling to do this, so this appears to be
a workable compromise.
However, her suggestion that objectors might be
made to facilitate services for "highly vulnerable
patients" is not acceptable and demonstrates an
absence of reflection that is uncharacteristic of
her work. It ignores the issue of complicity and
demands that physicians accept patient
"vulnerability" as justification for setting aside
their moral convictions. The tendentious nature of
this reasoning becomes apparent within the context
of end of life care. Many physicians would consider
patient vulnerability near the end of life a strong
reason to oppose euthanasia, not a reason to
help the patient make an appointment for a lethal
injection.
Registration of objecting physicians>
The maintenance of a College registry of
physicians willing to cooperate in the provision of
defined services is a sound strategy that may have
many applications. For example, the author describes
a register of health care providers in Texas who are
willing to accept patients who want treatment or
care either continued or discontinued near the end
of life.96
A similar concept underlies the institution of the
Hippocratic Registry.97
However the registration of objecting physicians
in the manner proposed by the author is not
acceptable. Citizens in a liberal democracy should
not be required to register their intention to
exercise fundamental freedoms, and to submit to
cross-examination to prove that they can do so
responsibly. No professional or social group should
be subjected to such intrusive and paternalistic
state supervision.
Moreover, to claim that a regulatory authority is
competent to judge the validity or sincerity of the
moral or religious beliefs of physicians is at least
extravagant. It is certainly inconsistent with the
prevailing ethos of moral pluralism recognized and
celebrated by the author.
Finally, advance registration of all objections
of conscience is also impracticable. Physicians
cannot accurately identify - in advance - all
services to which they might conceivably object on
moral grounds, especially when one takes into
account the ethical conundrums continually spawned
by technological development. Moreover, the facts in
a particular case may modify a physician's moral
evaluation of an act. The author herself not only
recognizes the possibility of this kind of
re-evaluation, but insists that it is a serious and
continuing obligation.98
It thus would be unfair to make advance registration
of objections a condition for the exercise of
freedom of conscience by physicians.
Non-negotiable duties
With respect to the proposed "non-negotiable
duties," some important qualifications are in order.
"Invidious discrimination" is a legal term of art
that appears to have originated in a 1942 decision
of the US Supreme Court. The Court agreed that some
kinds of discrimination are acceptable; the law is
not required to treat "things which are different in
fact or opinion . . . as though they were the same."99
Having made this clear, the Court denounced the
discrimination it found in an Oklahoma statute as
"invidious," describing it as the kind of
discrimination characteristic of racism:100
that is, inviting indignation and resentment.
The comparison was legitimate, but the
discrimination denounced by the court was not unjust
because it was invidious; it was invidious because
it was unjust, and it was unjust because of its
unequal and capricious treatment of crimes of
roughly equal gravity.
Such distinctions have since been lost. Anything
described as "invidious discrimination" is now
presumed to be unjust discrimination.101
For example, Fernandez Lynch does not object if
a physician refuses to offer artificial reproductive
services to anyone at all. But she is clearly
indignant about the refusal of such services to
same-sex couples or single individuals and describes
this as "invidious discrimination,"102
which, in her words, is evil.103
That judgement is widely shared in some circles, but
it is far from universal, even among those who have
no moral objections to homosexual conduct or
lifestyles.
On the other hand, there could be no objection to
a duty to avoid "unjust" discrimination. Of course,
it would then be necessary for an adjudicator to
consult some standard beyond indignation. It would
be necessary to ask if it is reasonable to believe
that, other things being equal, the needs of
children are best served in the moral environment of
a family sprung from the marriage of a man and
woman. It would be necessary to ask if it is
reasonable to believe that the needs of children
should not be subordinated to the desires of adults.104
The author seems to consider objecting physicians
who hold such views to be bigots deserving
denunciation, not accommodation,105
and one reason for her plan to have regulators pass
judgement on their views is to ensure that they are
not accommodated.106
If so, "invidious discrimination" as a term of art
serves this purpose very well. It effectively
precludes serious consideration of the very point
she makes elsewhere: that objectors might be right.
"Discrimination" has become a highly elastic and
politically charged term. Accusations of
discrimination are too often used to launch
inquisitions to purge the public square of heretical
opinions that challenge the dominant ethos. The
strategy is, even now, being proposed as a means of
purging the medical profession.107
It must be vigorously opposed.
Concerning notice to patients, it is common
ground that conflicts should be avoided, especially
in circumstances of elevated tension, and that they
often can be avoided by timely notification of
patients, erring on the side of sooner rather than
later.108
However, inflexible notification protocols like
that proposed by the author do not serve the
interests of either patients or physicians. For
example: it would probably be unnecessary for a
physician who accepts a 55 year old single woman as
a patient to begin their professional relationship
by disclosing objections to abortion, and it could
well be unsettling for the patient if her medical
history includes abortion. And, while it is possible
that the woman might, six months after being
accepted as a patient, ask for an embryo transplant,
it does not follow that the mere possibility of such
a request imposes a duty on the physician to
disclose moral objections to artificial reproduction
at their first consultation.
Interests of patients and physicians are better
served by open and continuing communication. On the
part of the physician, this involves a special
responsibility to be attentive to the spoken and
unspoken language of the patient, and to respond in
a caring and truthful manner. Notice should be given
when it would be apparent to a reasonable and
prudent physician that a conflict is likely to
arise. In some cases - but not all - this may,
indeed, be when a patient is accepted. The same
holds true for notification of patients when a
physician's views change significantly.
It is necessary to distinguish explicitly between
two kinds of information. First: a patient needs
information in order to make an informed decision
about treatment: options available, potential harms
and benefits and so forth. Second: when an objecting
physician declines to provide a service, a patient
who is seeking it may need the name and address of a
willing provider.
Respecting the principle of informed consent by
providing the first kind of information does not, in
the Project's experience, generate "moral distress"
among objecting physicians. However, they often
refuse to provide information about where to obtain
a procedure to which they object because they
consider that to be a form of unacceptable
complicity in an immoral act. One finds this
reflected in the policies of some regulatory
authorities. If a physician in British Columbia were
to give her the address of someone willing to
provide a sex selective abortion, he would
risk prosecution for professional misconduct by the
College of Physicians and Surgeons. The College
believes that sex selective abortion is "socially
repugnant" and that "it is unethical for physicians
to facilitate such action."109
Nonetheless, objecting physicians who provide all
information relevant to a decision to have an
abortion are sometimes accused of unethical conduct
on the specious ground that their refusal to provide
the address of an abortion facility violates the
principle of informed consent.110
Such accusations seem designed to pervert the
principle of informed consent in order to force
objecting physicians to do what they believe to be
wrong.
That physicians have a duty to provide emergency
treatment is not disputed. What can be disputed, as
Fernandez-Lynch explains, is the definition of
"emergency," especially if, as in the case of
"informed consent," activists deliberately broaden
the definition for the purpose of forcing physicians
to provide treatment to which they object.111
Limitations of
the book
Having considered the key elements of the
author's proposal, it is now necessary to consider
the limitations of the book.
The author warns the reader that her book is not
about moral philosophy.112She
does not try to understand the origin of conscience,
does not attempt to define it, and does not consider
its nature. All she offers is speculation that
conscience is "a slippery concept," something in the
way of an "ethical tug",113
a "motivator," some fuzzy feeling, or an "interior
voice."114
Nor does she, at any point, consider the origin,
definition, or nature of freedom. She explains that
she wants to leave philosophy to philosophers.
She has a more modest goal. It is sufficient, for
her purposes, to acknowledge that conscience is "an
incredibly powerful force in our lives," and that it
is causing problems in modern health care. All she
wants to do is solve those problems "in as
comprehensive a manner as possible," and, for that
reason, her book has a strictly "legal trajectory."115
The practical consequence of this modesty is that
a the author has compiled over three hundred pages
of discussion, argument and supporting materials,
but the best and most patient of readers will,
reaching the end of the book, have no clear idea
about what all of it means. We cannot possibly know
whether or not what the author proposes will
safeguard freedom of conscience if we do not know
what it is.
The author states that her solution "preserves
the moral integrity of physicians in most
circumstances."116
But how can we be sure of this, if we don't know
what freedom of conscience is or how it relates to
moral integrity?117
And what could "moral integrity" possibly mean
within the context of moral pluralism?
The author states that the book seeks a "middle
ground."118
The middle ground between access to services and -
what ? Jiminy Cricket's "still small voice that
people don't listen to"?
The author declares that her proposal is "the
right answer."119
But if we don't know what freedom of conscience is,
how can we be sure that we are even asking the right
questions?
The nature of
the book
This is not to imply that Fernandez Lynch has
written a couple of hundred pages of nonsense.
Regardless of their perspectives on the issues,
readers will welcome many of the author's trenchant
observations. However, it is necessary to
acknowledge what the author herself admits. In her
view, the heart of the conscience clause debate is
patient access to services.120
She has written a book about how to help patients
obtain services when some of the gatekeepers who
control access to them are uncooperative.121
It is not a book about freedom of conscience.
This can be illustrated using what might be
called a Microsoft model of her proposal:
- Each medical gatekeeper has a computer chip
implanted in his head that contains a personal
Conscience Programme.
- Personal Conscience Programmes come from
many different sources. In the health care
environment, they help gatekeepers decide when
to open a gate to the health care network.
- However, clients are becoming dissatisfied
because older versions of the Conscience
Programme generate "close gate" messages in
response to valid client network requests.
- Since the principal concern is client
access, and clients depend on gatekeepers for
access, the author has developed a fix to help
clients work around frustrating "close gate"
messages.
- When they are hired, gatekeepers upload a
copy of their Conscience Programme to a central
server. If they get a new Conscience Programme
or an upgrade, they must update the central
server.
- The network administrator ensures that the
gatekeepers' Conscience Programmes are, if not
the latest available version, at least
compatible with the existing system.
- Gatekeepers are notified if they are using
incompatible versions (very rare) or if their
chips are infected with the Invidious Virus.
- Gatekeepers are replaced only if they do not
upgrade to a compatible version of the
Conscience Programme or remove the Invidious
Virus.
- Gatekeepers are also required to advise
clients which requests will trigger a "close
gate" response, and to send them updates. This
allows clients to know in advance what to expect
from their personal gatekeepers.
- The medical network maintains a website that
identifies gatekeepers known to have "close
gate" issues, so that clients can direct access
requests without having them bounced.
This fix does not require any special knowledge
of programming or personal programme chips, beyond a
most basic understanding of what the Conscience
Programme is supposed to do and how it actually
functions in a network environment. And this is
equally true of the author's proposal. She has
observed how conscience operates in the medical
environment, and concludes that we do not need
philosophy to solve access problems. All we need is
a strategy.
In fact, the author has been remarkably
successful. The strategy she proposes is very
promising in its broad outlines. And, within the
context of a book about patient access to services,
she has offered arguments about the importance of
freedom of conscience that are accessible and that
many people will find convincing. It would be unfair
to use the admitted limitations of the book as an
excuse to diminish what she has she has
accomplished. Instead, her work should be engaged
and the discussion raised to a new level.
The first step in this process is to recognize
that philosophy cannot be left to philosophers. That
is impossible. Every proposal for the just ordering
of society rests upon some kind of philosophy or
constellation of philosophical ideas. That is why,
despite the author's disclaimer that she is leaving
philosophy aside, social contract theory122
permeates the book.123
It is also why the author has, in the Project's
view, failed to correctly identify the central
issue.
Fernandez Lynch asserts that everything relevant
to the discussion of freedom of conscience in health
care turns on a correct understanding of medical
professionalism.124
With respect, that is not true. Everything does
not turn on a correct view of professionalism.
Everything - including one's view of
professionalism - turns on an adequate understanding
of the nature of the human person.
Everything proposed by Fernandez Lynch is based
on the understanding of the human person that she
brings with her to the table to discuss the terms of
her compromise. And this is very evident in Conflicts of Conscience in Health Care,
beginning with the statement from Pope John Paul II
in the introduction: "the human person" must not be
forced to commit an injustice because that would be
"intrinsically incompatible with human dignity." The
author seems to have agreed with this statement
without comprehending the fullness of its meaning.125
Later, as she develops her proposal, she is
unable to find a standard that can be used to decide
what services ought to be guaranteed by a regulatory
authority.126
She remarks that it is impossible even to agree
on what services are "controversial."127
She struggles - without success - to find broadly
acceptable definitions for critical concepts:
"harm,"128
"needs and preferences"129
- even "emergency."130
All of these concepts depend upon an
understanding of the nature of the human person.131
We cannot agree upon what is good or bad for the
patient - or the physician - without first agreeing
upon that. That is what determines not only how we
define medical necessity or emergency, but how we
approach every moral or ethical problem in medicine
- including freedom of conscience. Fernandez Lynch
encountered this assertion more than once while
researching the book, but does not appear to have
recognized its significance.132
That significance may be outlined in a series of
four hypotheses.
First hypothesis: the person is at the centre
First: fundamental disagreement about the nature
of the human person is what lies at the centre of
disputes about freedom of conscience. The nature of
the human person - not professionalism - must be the
focus of our attention.
And when we shift our focus to the understanding
that informs the work of Fernandez Lynch, we
encounter much that is very familiar. We discover
that it identifies autonomy as the essential
characteristic of the human person.133
One increases one's autonomy by being "empowered"
to get what one wants or to do what one wants. For
this, freedom of choice is essential.134We
must eliminate factors that might restrict freedom
of choice, like restrictive beliefs.135
Even religious beliefs are understood and valued
primarily as expressions of autonomy.136
The pursuit of autonomy is potentially limitless,
but resources and opportunities are finite. Thus,
human interactions come to be seen primarily in
terms of struggles for power.137
People can, of course, consent to co-operate with
one another to satisfy their respective interests.138
But the key word is consent. Consent justifies
any action that might otherwise be held to violate
personal autonomy,139
like euthanasia.140
Autonomy is violated not only when consent is
improperly obtained,141
but whenever someone's interests are adversely
affected without his consent.142
Finally, when pursuit of personal autonomy is the
dominant ethic, it is socially critical to maintain
a balance of power. Hence, maintaining equality -
understood as an equitable balance of power -
becomes the dominant concern.143
This readily translates into 'respecting boundaries'
and 'respecting choices.' The notion of boundaries
provides each person with a sphere of influence
within which to exercise power without coming into
conflict with others.
Second hypothesis: the ideology of the autonomous
person
It is reasonable to believe that the emphasis
placed on power and autonomy in contemporary thought
is the product of an ideology, as defined by Hannah
Arendt: a system of thought in which everything that
needs to be explained can be explained "in the
consistent process of logical deduction" from a
single controlling idea.144
And with this we come to the second hypothesis.
The ideology of the autonomous person (to give it a
name), while it fits well with utilitarianism and
social contract theory, does not comport with the
concept of the human person that informs the
statement by John Paul II in the introduction to the
book. It does not have room for all that is
contained in concepts of the human person that come
to us from the patrimony of great religious and
philosophical traditions.
The third hypothesis is best understood in an
historical context.
The notion of freedom of religion could not take
root in Europe prior to the Reformation. From that
point it became possible to think of freedom of
religion in some form, and increasingly necessary to
do so as an important element in maintaining civil
order. Freedom of conscience was the necessary
(though not sufficient) condition for the exercise
of freedom of religion, since the decision to
convert from one religion to another depended on the
judgement of conscience.0
For the next four hundred years, freedom of
religion made its way forward in the realms of
politics and law, but freedom of conscience lingered
in the provinces of philosophy and theology. Thus,
when "freedom of conscience" appeared in the
statutes and constitutions of this period, it was
always in its Reformation context, linked to freedom
of religion.
The proclamation of the Universal Declaration
of Human Rights in 1948 marked the first time
that freedom of conscience and religion were clearly
distinguished in law.145
Since that time, it has appeared in numerous
national constitutions that used the Declaration
as a template.
But the Declaration had a limitation that
has been inherited by subsequent constitutions and
charters. Jacques Maritain, one of the driving
forces behind the Declaration, identified it
at the time. He explained that the Universal
Declaration of Human Rights was, in a sense,
only an action plan. It was an agreement only about
how people and states ought to behave. There was no
agreement about why they should behave that way: no
agreement about the nature of the human person, and
- important in the present context - no agreement
about the origin, definition or nature of freedom of
conscience.146
Maritain was, nonetheless, optimistic, convinced
that much could be accomplished even with what he
called "the last refuge of intellectual agreement."147
His optimism was not misplaced. Much has been
accomplished. But his optimism was also based on a
key premise: that no "genuine democracy" would
demand conformity to "any philosophic or any
religious creed." Such demands, made by totalitarian
states, had produced, he said, only an "inhuman
counterfeit of civilization."148
Third hypothesis: rights charters transformed
What Maritain appears not to have foreseen is a
possibility that is stated here as a third
hypothesis: that charters and bills of rights can be
used to impose the ideological conformity Maritain
feared. This can be done by defining and
interpreting human rights to fit a particular view
of human nature, while excluding others. Not one
word of the law need be changed to accomplish this;
it will continue to appear to protect fundamental
rights and freedoms. But this will be true in
fact only if the concept of the human person
that informs the official interpretation of the law
is at least adequate.
Fourth hypothesis: charters of destruction
With the fourth hypothesis comes controversy. If
the underlying concept is not adequate - and
especially if it is erroneous - human rights law
will not sustain or protect authentic human rights
and freedoms. Quite the reverse. It will become an
instrument of their destruction, working through the
key disciplines of education, law and medicine.
In this case, the effect on the body politic will
be analogous to the effects of HIV on the immune
system. Institutions meant to preserve and protect
human society will not just fail. Like infected
immune cells, they will become the very means by
which that failure spreads. Ultimately, they will
produce the kind of oppressive counterfeit of
democracy that Maritain feared. Perhaps John Paul II
had something like this in mind when he observed
that a democracy without values can easily become an
"open or thinly veiled totalitarianism."149
Closing
In the sixty years since the 1948 Universal
Declaration of Human Rights, the phrase "freedom
of conscience" has been cut and pasted into
countless charters and bills of rights, but there is
yet no common and coherent agreement about what
freedom of conscience is, and how it is related to
the good of the human person and human society. We
have carried on for sixty years as if this were of
no practical consequence. This cannot continue
indefinitely.
The appearance of Conflicts of Conscience in
Health Care is a warning. We are approaching a
time when, in different countries, handfuls of
judges, academics and bureaucrats will be asked to
impose their dogmatic definitions of freedom of
conscience upon their fellow citizens, and to give
those definitions the force of law.
In so doing, will they, in the name of "human
rights, " blithely apply inadequate or erroneous
notions of the human person that they bring with
them from their social or professional circles, thus
subverting the very rights and freedoms they profess
to uphold?
Or will they, recalling Fernandez Lynch's counsel
of prudence, ensure that their dogmatic definitions
leave room in their countries for more than one
understanding of the human person - for more than
one philosophy of life?
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