BOOK REVIEW
Conflicts of Conscience in Health Care: An Institutional
Compromise
Notes
1. Fernandez-Lynch, Holly, Conflicts of Conscience
in Health Care: An Institutional Compromise. Cambridge, Mass.: The MIT
Press, 2008, p. xii-xiii (hereinafter "Conflicts.")
2. John Paul II, Encyc.
Evangelium Vitae
(25 March, 1995) 74. (Accessed 2009-12-12)
3. Conflicts, p. 1.
4. Conflicts, p. 256
5. Conflicts, p. 33, 241, 257
6. Conflicts, p. 245
7. Murphy, Sean,
Service or Servitude: Reflections on Freedom of Conscience for Health
Care Workers.
8. Conflicts, p. 256
9. Conflicts, p. 38. Exclusive focus on
abortion was one of the criticisms of an American health care reform bill
(HR 3590) by the US Conference of Catholic Bishops. "[C]ritically important
conscience protections on issues beyond abortion have yet to be included in
the bill," they wrote. "To take just one example, the bill fails to ensure
that even religious institutions would retain the freedom to offer their own
employees health insurance coverage that conforms to the institution's
teaching."
Letter to the United States Senate from the US Conference of Catholic
Bishops, 20 November, 2009. (Accessed 2009-12-05)
10. Conflicts, p. xiv
11. Conflicts, p. 38
12. Conflicts, p. 19-75
13. Conflicts, p. 70, 74
14. Conflicts, p. 146, 165-193
15. Conflicts, p. 14, 74-75, 97, 112, 146,
165-193
16. Conflicts, p. 111-113
17. Conflicts, p. xi
18. Conflicts, p. 228
19. Conflicts, p. 24, 99, 256
20. Conflicts, p. 56, 80, 245
21. Conflicts, p. 129, 172
22. Conflicts, p. 167, 227. Note that she
rejects the demand that all physicians should be made to achieve technical
competence in the procedure. This requirement, too, would seriously
undermine the compromise she proposes. Conflicts, p. 205
23. Conflicts, p. 75. She later cites a survey
that found "four out of five women supported policies allowing individual
pharmacists to refuse to dispense contraceptives when the pharmacy bore the
obligation of assigning another employee to fill the prescription." The
results were reversed when the obligation was removed. Conflicts, p.
104
24. Conflicts, p. 99
25. Conflicts, p. 84
26. However, the author perceptively notes that the
pursuit of moral pluralism has generated conflict, which many have tried to
avoid by forcing people "to restrict their beliefs to their personal lives."
Conflicts, p. 22
27. Conflicts, p. 135
28. Conflicts, p. 85
29. Conflicts, p. 84. "No one can empirically
prove that abortion kills a person with full moral status," she writes, "or
that contraception is an offense against God." Conflicts, p. 148.
Similarly - though she does not say it - no one can, in her terms, prove
that abortion does not kill a person with full moral status, or prove
that contraception is not an offense against God.
30. Conflicts, p. 85.
31. Conflicts, p. 87-88, 90-93
32. Conflicts, p. 182-84. The author cites a
refusal to provide prescription drugs as an example of the the kind of rare
exception she has in mind.
33. Conflicts, p. 10
34. Conflicts, p. 22-23
35. Conflicts, p. 80-81
36. Conflicts, p. 86
37. Conflicts, p. 82. See
Final Report of the Tuskegee Syphilis Study Legacy Committee (May
20, 1996). University of Virginia, Claude Moore Health Sciences Library.
(Accessed 2009-09-17.) The author also refers to human experimentation on
concentration camp inmates during the Holocaust (Lifton, Robert Jay, The
Nazi Doctors: Medical Killing and the Psychology of Genocide. New York:
Basic Books, 2000) and the participation of physicians in abusive
interrogations and torture, citing Matthews, Richard G., "Indecent Medicine:
In Defense of the Absolute Prohibition against Physician Participation in
Torture," Am. J. Bioethics 6, no.3 (2006):W34
38. Marsh, James H.,
Eugenics: Keeping Canada Sane. The Canadian Encyclopaedia
(Accessed 2009-09-17)
39.
Muir v. The Queen
in right of Alberta, 132 D.L.R. (4th) 695. Court File No. 8903
20759, Edmonton, Alberta. Court of Queen's Bench, Veit J. January 25, 1996
(Accessed 2009-09-17)
40. Conflicts, p. 82.
41. Conflicts, p. 81, quoting Lesnick, Howard,
"The Religious Lawyer in a Pluralist Society," Fordham Law Review 66
(1998), 1469, 1489-1490.
42. Lesnick, Howard, "The Religious Lawyer in a
Pluralist Society," Fordham Law Review 66 (1998), 1469, 1489-1490.
Quoted in Conflicts, p. 81.
43. Conflicts, p. 81.
44. Identifying Julian Savulescu and Rosamund Rhodes in
particular. Conflicts, p. 58, 62
45. Conflicts, p. 101.
46. Conflicts, p. 80.
47. Conflicts, p. 206-207, 214
48. Conflicts, p. 13-14, 97, 117-143. She
specifies that the goal is "meaningful, not merely nominal availability."
Conflicts, p. 168. The author acknowledges that delivery of health care
involves other professions and entities, so implementation of the compromise
would require its adaptation and application to them. Conflicts, p.
286 note 38.
49. Conflicts, p. 181, 184, 188
50. Conflicts, p. 117-118
51. Conflicts, p. 125-126
52. Conflicts, p. 127-129
53. Conflicts, p. 130-132
54. Conflicts, p. 14, 112, 211-212
55. Conflicts, p. 213
56. Conflicts, p. 101, 111-112, 208
57. Conflicts, p. 230
58. Conflicts, p. 181-182
59. Conflicts, p. 185-186
60. Conflicts, p. 186-187
61. Conflicts, p. 189
62. Conflicts, p. 184
63. Conflicts, p. 217-219, 222
64. Conflicts, p. 254
65. Conflicts, p. 145
66. Conflicts, p. 147-163
67. Conflicts, p. 147
68. Conflicts, p. 215
69. Conflicts, p. 153-155
70. Conflicts, p. 151
71. Conflicts, p. 156
72. Conflicts, p. 215, 217-219, 222-223
73. Conflicts, p. 215, 219-223
74. Conflicts, p. 215, 223-228
75. Conflicts, p. 231-232
76. Conflicts, p. 229-231
77. Conflicts, p. 233. Quoting Veatch, Robert
M., The Patient-Physician Relation: The Patient as Partner, Part 2.
Bloomington Indiana University Press, 1991, p. 152
78. Conflicts, p. 229
79. Conflicts, p. 233-235
80. Conflicts, p. 236
81. Conflicts, p. 244
82. Conflicts, p. 14, 214
83. Conflicts, p. 196-201, 203
84. Conflicts, p. 207
85. Conflicts, p. 204- 207, 214
86. Conflicts, p. 14
87. Conflicts, p. 23
88. Conflicts, p. 24
89. Conflicts, p. 23
90. ". . . preferences based on racist, sexist,
homophobic, or other sorts of bigoted views can be appropriately excluded
from legitimate discourse as entirely illogical and not even arguably
correct." (Conflicts, p.92). ". . . invidious discrimination is
clearly an evil . . ." (Conflicts, p. 155)
91. Conflicts, p. 201. Similarly, she agrees
that a physician would be justified in refusing to assist a patient to do
something "truly wrong."(Conflicts, 84)
92. Conflicts, p. 201
93. Conflicts, p. 85
94. Conflicts, p. 168-172
95. A more extended discussion of the proposal than is
attempted here would necessarily involve more detailed critical evaluation.
For example: while the author's plan is designed to permit objecting
physicians to continue in the profession, it would appear that they (and
others who share their convictions) may be excluded from the government of
the profession, at least to the extent that it would make them complicit in
the provision of services to which they object. It is not clear what long
term consequences this might have for the profession and the viability of
the compromise.
96. See, for example,
Letter to Calgary Co-operative Association, 19 December, 2001
97. Conflicts, p. 146;
Hippocratic Registry
(Accessed 2009-12-09)
98. Conflicts, p. 236-237
99.
Skinner vs. Oklahoma
315 US 535 (1942) Quoting Tigner v. Texas, 310 U.S. 141, 147 , 60
S.Ct. 879, 882, 130 A.L.R. 1321. FindLaw for Legal Professionals (Accessed
2009-09-22)
100. ". . .strict scrutiny of the classification which
a State makes in a sterilization law is essential, lest unwittingly or
otherwise invidious discriminations are made against groups or types of
individuals in violation of the constitutional guaranty of just and equal
laws. . .When the law lays an unequal hand on those who have committed
intrinsically the same quality of offense and sterilizes one and not the
other, it has made as an invidious a discrimination as if it had selected a
particular race or nationality for oppressive treatment."
Skinner vs. Oklahoma
315 US 535 (1942) FindLaw for Legal Professionals (Accessed 2009-09-22)
101. Criminal Law Lawyer Source: "Discrimination".(Accessed
2009-09-22)
102. Conflicts, p. 149-150,156-157
103. Conflicts, p. 155
104. This kind of alternative view is explored
succinctly from a secular perspective in Somerville, Margaret, The Case
Against "Same Sex Marriage." A Brief Submitted to The Standing Committee
on Justice and Human Rights (FINAL VERSION) McGill Centre for Medicine,
Ethics and Law, Montreal, Québec (April 29, 2003)
(http://www.marriageinstitute.ca/images/somerville.pdf) Accessed 2009-12-09
105. Conflicts, p. 92, 149-150,155
106. Conflicts, p. 149-150
107. See, for example,
Submission to the College of
Physicians and Surgeons of Ontario Re: Physicians and the Ontario Human
Rights Code, 8 October, 2008.
108. Conflicts, p. 217-218
109. College of Physicians and Surgeons of British
Columbia,
Fetal
Sex Determination. (Accessed 2009-09-20). See also Society of
Obstetricians and Gynaecologists of Canada Policy Statement No. 198:
Statement on Gender Selection (November, 2007); SOGC Policy
Statement No. 192:
Fetal Sex Determination and Disclosure (April, 2007) (Accessed
2009-09-20). Fernandez-Lynch comments on the CPSBC policy (Conflicts,
p. 127-128), but the citation in the end note (Conflicts, p. 289no.
27, ) is inaccurate.
110. A document from the American Bar Association,
quoted by the author at p. 232, appears to make this claim. Hanlon, Stephen
F., American Bar Association Section of Individual Rights and
Responsibilities, Health Law Section,
Report to the
House of Delegates, February, 2005, p. 1. (Accessed 2009-12-09)
111. Conflicts, p. 226-229
112. Conflicts, p. xii
113. Conflicts, p. 35, citing [n61, p 270]
Eisgruber, Christopher L., Sager, Lawrence G. "The Vulnerability of
Conscience: The Constitutional Basis for Protecting Religious Conduct." U.
Chi. L. Rev. 61 (1994): 1245, 1291
114. "[T]he interior, quintessentially human voice that
speaks to us of goodness and duty, the voice we must obey if we are to keep
our integrity." Conflicts, p. 35, quoting Hasson, Kevin Seamus,
The Right to be Wrong: Ending the Culture War over Religion in America.
San Francisco, CA: Encounter Books, 2005. p. 14.
115. Conflicts, p. xii
116. Conflicts, p. 10
117. For example, having frequently referred to the
importance of personal or moral integrity, the author nonetheless asserts
that, in what she calls 'hard cases', the personal integrity of a physician
"can be outweighed by the need for professional integrity." (Conflicts,
p. 196-197)
118. Conflicts, p. 12
119. Conflicts, p. 12
120. Conflicts, p. 24, 99
121. Conflicts, p. 224
122. Contract, social: The imaginary device through
which equally imaginary individuals, living in solitude (or, perhaps,
nuclear families) , without government, without a stable division of labour
or dependable exchange relations, without parties, leagues, congregations,
assemblies or associations of any sort, come together to form a society,
accepting obligations of some minimal kind to one another, and immediately
or very soon thereafter binding themselves to a political sovereign who can
enforce those obligations. Honderich, Ted (Ed.) The Oxford Companion to
Philosophy (2nd Ed.) Oxford: Oxford University Press, 2005.
p. 174
123. Conflicts, p. 6, 10, 13, 43, 47, 49, 52,
54, 57, 58, 70-75, 86, 88-89, 111, 120, 123, 124, 132, 136,156, 197, 199,
207, 250
124. Conflicts, p. 13, 38-39, 43
125. Conflicts, p. 14-15. This probably
explains why Fernandez Lynch later applies a statement from Pope John Paul
II in support of the polemical assertion that "physicians cannot be
permitted to hold physicians hostage to their personal moral beliefs.
Conflicts, p. 99; p. 284, n.1. "John Paul II observed that 'freedom of
conscience does not confer a right to indiscriminate recourse to
conscientious objection. When an asserted freedom turns into license or
becomes an excuse for limiting the rights of others, the state is obliged to
protect, also by legal means, the inalienable rights of its citizens against
such abuses.'" The fragment of text chosen by the author is misleading
because she has taken it is seriously out of context. Her claim that the
Pope "was referring to the dangers of political fundamentalism in denying
human rights" is a manifestly inadequate gloss of complex document about
freedom of conscience. No on actually familiar with the writings and thought
of John Paul II would have attempted such a spurious association. For the
source (incorrectly cited by Fernandez Lynch) see John Paul II,
If You Want Peace, Respect the Conscience of Every Person.
Message for the XXIV World Day of Peace, 1 January, 1991. (Accessed
2009-12-09)
126. Conflicts, p. 121-127
127. Conflicts, p. 133
128. Conflicts, p. 127-129
129. Conflicts, p. 130-132
130. Conflicts, p. 133, 226-229
131. It is the province of science to determine when a
human individual begins to be - that is, to exist. The existence of a
human being is a purely biological matter. However, science cannot
determine what moral obligations are called forth by the existence of a
human being, nor can it determine that the individual is a human person.
That is a philosophical question, and science is not competent to decide
philosophical questions. Its correct and limited role is to provide factual
data that philosophers and ethicists incorporate into their deliberations.
Irving, Dianne N., "When do Human
Beings Begin? 'Scientific' Myths and Scientific Facts." International
Journal of Sociology and Social Policy 1999, 19:3/4:22-47
132. Fernandez Lynch cited a paper by the Project
Administrator as an example of an unworkably broad understanding of "needs,"
apparently because the paper did not specifically define "needs." The point
of the paper, however, (and the reason for the absence of the kind of
definition she was seeking) is precisely the point here: that such a
definition presumes some kind of underlying definition of the human person.
Conflicts, p. 130-131; Murphy, Sean,
Freedom of Conscience and
the Needs of the Patient. Presented at the Obstetrics and
Gynaecology Conference New Developments - New Boundaries in Banff, Alberta
(November 9-12, 2001). Exactly same point was made in a second paper
[Murphy, Sean, Service or
Servitude: Reflections on Freedom of Conscience for Health Care Workers.]
cited and quoted twice by the author (Conflicts, p. 8, 256).
133. Fernandez Lynch apparently sees the origin of the
current controversy as a conflict between physician and patient autonomy,
describing the patient autonomy movement as a "challenge to the autonomy of
physicians." (Conflicts, p. 22) This is at least in part because some
prominent commentators have explained it in those terms. Proponents of what
she calls the "patient-centric" approach, she says, leave little or no room
for physician autonomy (Conflicts, p. 61). In contrast, she quotes
Edmund Pellegrino's assertion that an attack on physician autonomy is an
assault on "an essential part of the person's humanity. . .". (Conflicts,
p. 67, quoting Pellegrino, Edmund D., "Patient and Physician Autonomy:
Conflicting Rights and Obligations in the Physician Patient Relationship,"
J. Contemp. Health Law & Policy 10 (1993) 47, 58-59.) She focuses on finding
ways to "protect the autonomy of both parties" and "preserve the autonomy of
all interested individuals" (Conflicts, p. 87, 99). When she argues
for that objecting physicians should violate their convictions in hard
cases, she appeals to the principle of autonomy: their autonomous decision
to enter the profession, and the lesser autonomy of patients (Conflicts,
p. 196-198). Similarly, she justifies limitations on freedom of conscience
by describing them as "essential to the protection of patient autonomy,
safety or serious medical interests."(Conflicts, p. 229) It is
significant that the author repeatedly emphasizes the need to preserve
autonomy rather than integrity, and places autonomy - not integrity - on par
with safety and "serious medical interests." The author's views reflect the
dominant position that autonomy has achieved in contemporary thought.
134. When working out the ethical problem of
conscientious objection in hard cases, the author conducts the discussion
entirely within the framework of autonomy and choice, concluding that
freedom of conscience should be subordinated when it is necessary to
preserve freedom of choice for the patient. (Conflicts, p. 196-199)
Elsewhere she asserts that patient choice must not be compromised by
physician views about what services are appropriate or optimal.(Conflicts,
p. 203)
135. In the author's case, consider her prejudice
against religious beliefs that purport to be based on absolute standards of
right and wrong. (Conflicts, p. 23-24)
136. The tendency of the law to identify religious
belief as an expression of personal autonomy is discussed in Berger,
Benjamin, L.,
Law's
Religion: Rendering Culture. Osgoode Hall Law Journal, Vol. 45,
No. 2. (Accessed 2009-09-22) The author refers to the importance of "moral
autonomy" Conflicts, p. xiii-xiv, 7, 196) and agrees with John
Rawls that moral pluralism is beneficial because it permits individuals "to
pursue their own conceptions of the good." (Conflicts, p. 22)
137. The author describes monopoly control of power as
characteristic of professionalism (Conflicts, p. 10, 69-70, 79, 86,
132, 214), and identifies power and admiration as forms of compensation
formerly paid to physicians as part of a purported social contract (Conflicts,
p. 46). Physician power is offered as one of the explanations for the
comparatively recent development of controversy about freedom of conscience
in health care (Conflicts, p. 19), and resistance of physicians to
the patient autonomy movement is explained as an attempt by the profession
"to reclaim some of its lost power." (Conflicts, p. 22) The author
validates professional ethics to the extent that they have "developed as
part of the negotiation of power with the public." (Conflicts, p.
136)
138. Hence the centrality of social contract theory in
the author's approach.
139. The author asserts that failure to obtain the
consent of the victims is "a major reason" for the historical and
professional condemnations of the conduct of Nazi physicians during the
Holocaust and of American researchers involved in the Tuskegee experiment, (Conflicts,
p. 82) though this is not clearly stated as her own view. She questions the
idea that consent is always sufficient to justify a procedure, but the
discussion is inconclusive. (Conflicts, 83). However, when she later
justifies the suppression of what she calls the "moral autonomy" of an
objecting physician in a hard case, she does so precisely because of the
physician's alleged implied consent to subordinate his "personal integrity"
to "professional integrity" upon entering the profession. Alternatively, she
alleges that he has a duty to consent in such circumstances. (Conflicts,
p. 196-197) This seems inconsistent with her earlier rejection of the
"consent paradigm" of medical professionalism (Conflicts, p. 48-57)
That conclusion, however, was based on her belief that physicians could not
be shown to have consented to meet all patient demands, not on rejection of
the notion of justification by consent.
140. Canada's Chief Justice based a right to assisted
suicide (distinguished from murder only by consent) on the fundamental
importance of individual autonomy and self-determination" and "the promotion
of individual autonomy." Re: Rodriguez and Attorney-General of British
Columbia et al; British Columbia Coalition of People with Disabilities, et
al, Intervener, 107 DLR (4th) 342, Supreme Court of Canada
141. Conflicts, p. 223
142. Thus, the
author claims that if a large number of physicians were to refuse to provide
services demanded by the public, they would act improperly by exercising
legislative power without the consent of the governed. (Conflicts, p.
69) It would, she asserts, be "an illegitimate imposition of views" on those
who disagree. (Conflicts, p. 86) Similarly, she describes
conscientious objection in hard cases as a political act that usurps
legitimate government authority. (Conflicts, p. 201)
143. The author appears to accept the view that there
is no moral equality (of persons) in the absence of a balance of power (Conflicts,
p. 198, quoting Fenton and Lomasky). "T]he power imbalance inherent in the
doctor-patient relationship," (Conflicts, p. 238) has become a
dominant theme not only in the medical profession, but in other disciplines.
Consider, for example, the themes of power and control reflected in
the philosophy of the
McMaster University School of Social Work: "As social workers, we
operate in a society characterized by power imbalances that affect us all.
These power imbalances are based on age, class, ethnicity, gender,
geographic location, health, physical ability, race, sexual preference and
income. We see personal troubles as inextricably linked to oppressive
structures. We believe that social workers must be actively involved in the
understanding and transformation of injustices in social institutions and in
the struggles of people to maximize control over their own lives." (Accessed
2009-12-11)
144. Arendt, Hannah,
"Ideology
and Terror: A Novel Form of Government." The citations and quotes
attributed to her are from this chapter, which was added to the 1958 edition
of her 1951 book, The Origins of Totalitarianism. (Accessed
2007-11-08)
145.
The Universal Declaration of Human Rights (1948), Article 18.
Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance. (Accessed
2009-12-11)
146. Maritain, Jacques, Man and the State.
Chicago: University of Chicago Press, 1951, p. 77
147. Maritain, Jacques, Man and the State.
Chicago: University of Chicago Press, 1951, p. 77-78
148. Maritain, Jacques, Man and the State.
Chicago: University of Chicago Press, 1951, p. 110
149. John Paul II, Encyclical
Centesimus Annus (1991) 46. (Accessed 2007-11-15)