Re: The Limits of Conscientious Refusal in Reproductive Medicine

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

Personal Opinions and Ideology, Not "Science"

From Conscience and its Enemies: Confronting the Dogmas of Liberal Secularism
Wilmington, Delaware: ISI Books, 2013

Reproduced with permission

Robert P. George*

On September 11, 2008, the President's Council on Bioethics heard testimony by Anne Lyerly, MD, chair of ACOG 's Committee on Ethics. Dr. Lyerly appeared in connection with the council's review of her committee 's opinion (No. 385) entitled "Limits of Conscientious Refusal in Reproductive Medicine." That opinion proposes that physicians in the field of women's health be required as a matter of ethical duty to refer patients for abortions and sometimes even to perform abortions themselves .

I found the ACOG Ethics Committee 's opinion shocking and,  indeed, frightening. One problem was its lack of regard - bordering on contempt , really - for the sincere claims of conscience of Catholic, Evangelical Protestant , Orthodox Jewish , and other pro-life physicians and health-care workers. But beyond that, it treated feticide - the deliberate destruction of a child in the womb - as if it were a matter of health care, rather than what it typically is: namely, a decision based on nonmedical considerations (such as whether a woman or her husband or boyfriend happens to want a child). On the understanding of medicine implicit in the report, the ends of medicine are fundamentally not about the preservation and restoration of health considered as an objective reality and human good but rather concern satisfying the personal preferences or lifestyle desires of people who come to physicians requesting surgeries or other services, irrespective of whether these services are in any meaningful sense medically indicated.

Let's say that a woman conceives a child and is unhappy about it. Is she sick? Does she need an abortion for the sake of her health? Not on any reasonable understanding or definition of health , even if we mean mental health. Pregnancy is not a disease. It is a natural process. In the normal case, a pregnant woman is not sick. Nor in the overwhelming majority of cases does pregnancy pose a threat to a woman's health . This is clear enough , but to make it still clearer let's imagine that a woman who is initially unhappy to be pregnant changes her mind. On reflection , she's content to be pregnant and happy to have a baby on the way. Did she suddenly shift from being sick and in need of "health care" in the form of an abortion to being well? Now let's consider that a couple of months later, she changes her mind again . It turns out that the baby is a girl, and she really want s a boy. So she is once again unhappy about the pregnancy and she reverts to wanting an abortion. Did knowledge of the baby's sex transform her from being a healthy pregnant woman to being sick? The question answers itself.

Now let us consider the ACOG committee report. What jumped off the page at me when I first read it is that it is an exercise in moral philosophy - bad moral philosophy, but lay that aside for now - not medicine. It proposes a definition of conscience, something that cannot be supplied by science or medicine, then proposes to instruct its readers on "the limits of conscientious refusals , describing how claims of conscience should be weighed in the context of other values critical to the ethical provision of health care."

Again, knowledge of these limits and values, or of what should count as the ethical provision of health care, is not and cannot possibly be the product of scientific inquiry for medicine as such. The proposed instruction offered by those responsible for the ACOG committee report represents a philosophical and ethical opinion ­ their philosophical and ethical opinion.

The report goes on to "outline options for public policy" and propose "recommendations that maximize accommodation of the individual's religious and 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." Yet again notice that every concept in play here - the putative balancing, the judgment as to what constitutes an "imposition" of personal beliefs on others, the view of what constitutes health care or reproductive health care, the judgment about what is deserved - is philosophical, not scientific or, strictly speaking, medical.

To the extent that they are "medical" judgments even loosely speaking, they reflect a concept of medicine informed, structured, and shaped by philosophical and ethical judgments - bad ones, by the way, such as the implicit judgment that pregnancy, when unwanted, is in effect a disease.

Those responsible for the report purport to be speaking as physicians and medical professionals. The report's supposed authority derives from their standing and expertise as physicians and medical professionals, yet at every point that matters, the judgments offered reflect their philosophical, ethical, and political judgments, not any expertise they have by virtue of their training and experience in science and medicine.

At the meeting of the President's Council, the chairman, Dr. Edmund Pellegrino, asked me to offer a formal comment on Dr. Lyerly's presentation of her committee's report. I was happy for the opportunity to call her and her colleagues out on their attempt to use their special authority as physicians to force fellow physicians to practice medicine in accord with the their contestable - and contested ­ philosophical, ethical, and political judgments. And make no mistake about it: at every key point in the report, their judgments are contestable and contested. Indeed, they are contested by the very people on whose consciences they seek to impose - the people whom they would, if their report were adopted and made binding, force into line with their philosophical and ethical judgments or drive out of their fields of medical practice. Many others contest the committee's judgments, too. In each of these contests a resolution one way or the other cannot be determined by scientific methods; rather, the debate is philosophical, ethical, or political.

That is the key thing to see: the issues in dispute are philosophical and thus can be resolved only by philosophical reflection and debate; they cannot be resolved by science or methods of scientific inquiry. Lay aside for the moment the question of whose philosophical and political judgments are right and whose are wrong. The point is that the committee's report reflects and promotes a particular moral view and vision, and particular understandings of health and medicine shaped by that moral view and vision.

The report, in other words, in its driving assumptions, reasoning, and conclusions, is not morally neutral. It represents a partisan position among the possible positions debated by people of goodwill in the medical profession and in society generally. For me, the partisanship of the report is its most striking feature. It represents a sheer power play on behalf of pro-abortion individuals who happen to have acquired power in their professional association. This is not about medicine. It is about ideology. It is about politics and political power.

The greatest irony of the report is its stated worry about physicians' allegedly imposing their beliefs on patients by, for example, declining to perform or refer for abortions - or at least declining to perform abortions or provide other services in emergency situations. The assumption here is the philosophical one that abortion, even elective abortion, is "health care," and that deliberately killing babies in their mother's wombs is morally acceptable and even a woman's right.

The truth is that the physician who refuses to perform abortions or the pharmacist who declines to dispense abortifacient drugs coerces no one. He or she simply refuses to participate in the destruction of human life - the life of the child in utero. Such a physician is not "imposing" anything on anyone, just as a sports shop owner who refuses to stock hollow-point "cop killer" bullets, even if he or she may legally sell them, is not imposing anything on anyone. By contrast those responsible for the report evidently would use coercion against physicians and pharmacists who have the temerity to dissent from the philosophical and ethical views of those who happen to have acquired power in ACOG - by forcing them either to get in line or to go out of business.

If the committee's advice were followed, the medical field would be cleansed of pro-life physicians whose convictions required them to refrain from performing or referring for abortions. Faithful Catho­ lics, Evangelicals and other Protestants, and many observant Jews and Muslims would be excluded from or forced out of obstetrics and gynecology. The entire field would be composed of people who agreed with, or at a minimum went along with, the moral and political convictions of the report's authors.

So, in truth, who in this debate is guilty of intolerance? Who is trampling on freedom? Who is imposing values on others? These questions, too, answer themselves.

It won't do to say that what the committee seeks to impose on dissenters is not a morality but merely good medical practice, for it is not science or medicine that is shaping the report's understanding of what counts as good medical practice. It is, rather, a moral opinion doing the shaping. The opinion that abortion is good medicine is a philosophical, ethical, and political opinion; it is a judgment brought to medicine, not a judgment derived from it. It reflects a view that abortion is morally legitimate and no violation of the rights of the child who is killed. It also reflects the view that medicine is rightly concerned with facilitating people's lifestyle choices even when they are neither sick nor in danger of being injured, and even when the "medical" procedure involves the taking of innocent human life.

Whether an elective abortion-or an in vitro fertilization procedure, or what have you - counts as health care, as opposed to a patient's desired outcome, cannot be resolved by the methods of science or by any morally or ethically neutral form of inquiry or reasoning. One's view of the matter will reflect one's moral and ethical convictions either way.

So the report's constant use of the language of"health" and "reproductive health" in describing or referring to the key issues giving rise to conflicts of conscience is at best question begging. No, that's too kind. The report's use of this language amounts to a form of rhetorical manipulation. The question at issue in abortion is not "reproductive health" or health of any kind, precisely because direct abortions are not procedures designed to make sick people healthy or to protect them against disease or injury. Again, pregnancy is not a disease. The goal of direct abortions is to cause the death of a child because a woman believes that her life will be better without the child's existing than it would be with the child's existing. In itself, a direct (or elective) abortion - deliberately bringing about the death of a child in utero - does nothing to advance maternal health (though sometimes the death of the child is an unavoidable side effect of a procedure, such as the removal of a cancerous womb, that is designed to combat a grave threat to the mother's health). That's why it is wrong to depict elective abortion as health care.

There is yet another irony worth noting. The report, in defending its proposal to compel physicians at least to refer for procedures that many physicians believe are immoral, unjust, and even homicidal, states that such referrals "need not be conceptualized as a repudiation or compromise of one's own values, but instead can be seen as an acknowledgment of both the widespread and thoughtful disagreement among physicians and society at large and the moral sincerity of others with whom one disagrees."

Suddenly it's the case that the underlying issues at stake, such as abortion, are matters of widespread and thoughtful disagreement. I agree with that. And it becomes clear from the report that we should show respect for the moral sincerity of those with whom we disagree. Bur it follows from these counsels that thoughtful and sincere people need not agree that abortion is morally innocent or acceptable, or that there is a "right" to abortion, or that the provision of abortion is part of good health care or is health care at all, at least in the case of elective abortions.

But then what could possibly justify compelling thoughtful, morally sincere physicians who believe that abortion is a homicidal injustice to perform or refer for the procedure, or else leave the practice of medicine? The report's "my way or the highway" view is anything but an acknowledgement of the widespread, thoughtful disagreement among physicians and society at large and the moral sincerity of those with whom one disagrees. Indeed , it is a repudiation of it.