Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

Re: The Limits of Conscientious Refusal in Reproductive Medicine

ACOG Committee on Ethics Opinion No. 385: November, 2007

Pro-Life Doctors: A New Oxymoron?

First Things
8 April, 2008
Reproduced with permission

Christopher Kaczor*

. . . the balance struck by the committee between the right of conscience of physicians and the reproductive health care of women so emphasizes patient autonomy that it turns physicians into medical automatons forced to act against their best ethical and medical judgment.

In November 2007, the Committee on Ethics of the American College of Obstetricians and Gynecologists (ACOG) published Committee Opinion # 385 entitled, "The Limits of Conscientious Refusal in Reproductive Medicine." The committee opinion sought to "maximize accommodation of an individual's religious or moral beliefs while avoiding imposition of these beliefs on others or interfering with the safe, timely, and financially feasible access to reproductive health care that all women deserve."

Unfortunately, the balance struck by the committee between the right of conscience of physicians and the reproductive health care of women so emphasizes patient autonomy that it turns physicians into medical automatons forced to act against their best ethical and medical judgment. As pointed out on March 14, 2008, by Health and Human Services secretary Mike Leavitt: "The ACOG ethics report would force physicians to violate their conscience by referring patients for abortions or taking other objectionable actions, or risk losing their board certification." Put simply, committee Opinion 385 could be the end of the pro-life doctor.

According to the ethics report, physicians objecting to abortion or contraception must refer patients desiring such services to other providers (recommendation # 4); may not argue or advocate their views on these matters though they are required to provide prior notice to their patients of their moral commitments (recommendation #3); and, in emergency cases or in situations that might negatively affect patient physical or mental health, they must actually provide contraception and/or perform abortions (recommendation #5, emphasis added).

In order to justify these recommendations, the committee appeals to an idiosyncratic conception of ethics and conscience. The ACOG guidelines implicitly view ethics as a matter of private emotion and sentiment, rather than as common rationality and shared practical wisdom. Against Kant's unconditional command, Newman's magisterial dictate, and Butler's famous dictum ("were its might equal to its right, it would rule the world"), the ACOG committee makes conscience a mere prima facie guide. "Although respect for conscience is a value, it is only a prima facie value, which means it can and should be overridden in the interest of other moral obligations that outweigh it in a given circumstance."

This peculiar account of conscience stands in no small tension with the view expressed by Antigone in Sophocles' tragedy, Socrates in the Crito, and Aquinas in the Summa Theologiae. Traditionally, conscience is the supreme proximate norm for human action precisely because it represents the agent's best ethical judgment all things considered.

The ACOG's own previous policy positions imply a very different understanding of the nature, scope, and claims of conscientious judgment, including the judgment that a proposed treatment is not in the best interest of the patient. In earlier statements, the ACOG defended the individual judgment of the physician in determining what is medically indicated as a buttress against laws criminalizing partial-birth abortion. If an individual doctor believes it is in the best interest of the patient's health to perform a particular method of abortion, then this judgment must be defended. The ACOG Statement of Policy on Abortion (reaffirmed in 2004) affirmed that partial-birth abortion "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman, and only the doctor in consultation with the patient, based on the woman's particular circumstances, can make that decision. . . . The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous." Here the ACOG holds that the judgment of the physician is paramount in determining what is or is not medically indicated.

Some physicians, however, refuse to perform abortions and/or provide contraceptives precisely because in their view, having examined the empirical evidence, such as the recent Royal College of Psychiatrists statement on women's mental health and abortion, these practices contradict the best interests of their patients. In such cases, the ACOG proposes to override their best medical judgment in favor of "standard care" as determined by the ACOG. It would seem that the conscientious judgment of the individual physician chosen by the patient is paramount only when this facilitates abortion.

Not only is the ACOG's definition of conscience hardly representative and selectively invoked, but the recommendations themselves are perhaps even more problematic. "Physicians and other health care professionals have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that their patients request." While this is clearly intended to facilitate abortion, clever pro-life physicians could fulfill the letter of the law by referring to another pro-life doctor. If construed as surely intended, however, the committee recommendation proposes a duty to cooperate in the wrongdoing of another. Foreseeing this objection, the committee responds, that it would be absurd to say, "I would have a guilty conscience if she did X." It is not, however, at all absurd to say, "I would have a guilty conscience if I helped her to do X."

Opinion 385 diminishes the autonomy of physicians, not only in action, but also in speech. When confronting insurance companies and federal family-planning guidelines, the ACOG has argued against "gag rules" that inhibit free communication between physician and patient. They warned, "Serious ethical problems arise if organizational rules (so-called 'gag rules') preclude such disclosures." In Opinion 385, by contrast, physicians may not speak freely about treatment options unless it is to parrot "professionally accepted characterizations of reproductive health services." Physicians are also forced, even in contexts where such matters may not be at issue, to make their ethical views known to patients, and yet are expressly prohibited "to argue or advocate" views contrary to ACOG committee policy. Opinion 385 forces physicians to reveal what they believe but forbids them to disclose why.

By extension and analogy, the flawed understanding of conscience found in Opinion 385 commits the ACOG to repugnant positions. Similar rules for accommodating conscience adopted in a different cultural and legal milieu would force physicians to perform female genital mutilation (FGM) if another physician was not available to perform the procedure. Nor could the gynecologist plead that FGM contradicts sound medicine, since he or she must mouth and act upon "professionally accepted characterizations" of the practice, as understood in the predominant cultural and enforced legal milieu. Can it be reasonably said that such a conception of conscience, for the doctor practicing in places where FGM is legally and culturally accepted, provide an adequate protection (let alone "maximize accommodation") for the physician conscientiously objecting to the practice?

Consider homegrown examples. A warden in a maximum security prison asks the resident doctor to facilitate giving a lethal injection to someone on death row. The doctor consciously opposes the death penalty and, further, having closely followed the case, is convinced the prisoner is innocent. But because other doctors are not available, the physician has a duty to execute the prisoner-this according to the ACOG's guidelines for conscience. In like manner, physicians opposed to euthanasia or physician-assisted suicide would be forced to kill or help kill their patients if no other doctor were available. In the absence of available doctors willing to kill, an unwilling physician may be forced into the role of Dr. Kevorkian.

It is true, as the ACOG points out, that, in taking on the role of physician, a person undertakes certain obligations. What is unclear is how these obligations relate to a judgment of conscience. Consider someone volunteering for military service who receives all the benefits and responsibilities that come with the oath to obey superior officers. If a superior officer orders him to do something that he considers morally wrong, if we make use of the principles invoked by the ACOG, the soldier may only disobey the order if there are other soldiers available to carry that order out. Surely, however, the demands of conscience should not be gerrymandered by the availability of people who very well may be less enlightened and conscientious.

The committee also worries that the exercise of conscientious objection may create or reinforce racial discrimination or socio-economic inequalities in society by denying contraception and abortion to minorities and the poor. One form of discrimination conspicuous by its absence is a concern for prejudice on the basis of religion. Catholics, as well as any other group opposed to the taking of innocent human life, will find it difficult if not impossible to practice medicine in accordance with the ACOG recommendations. If these recommendations become part of board certification, then Catholics and a large number of others, including many evangelicals, who accept that it is wrong to kill intentionally the innocent or formally cooperate in such killing, will be simply unable to practice medicine. Since Latinos and African Americans are disproportionately Catholic and evangelical, Opinion 385, in effect, reinforces prejudice and discrimination against these ethnic minority groups.

Many of the problems occasioned by the ACOG ethics report could have been avoided by recognizing the proper scope of liberty enjoyed by both patients and physicians. Physicians should determine what they consider to be medically indicated and whether they will perform a given procedure. Patients should be able to choose their doctor and accept or reject whatever services their doctor offers, seeking a second opinion if desired. Doctors as well as patients may misuse this autonomy, but this prima facie balance is preferable to the one-sided emphasis on patient autonomy found in the recent ACOG Committee Opinion.