Doctors' Orders

Michael A. Fragoso^*

Such activists may have their work cut out for them in the United States, whose oldest medical conscience protections date back to the Church Amendments, passed in the wake of Roe v. Wade-and whose commitment to conscience protection in general extends considerably further back in history.

Nevertheless pro-abortion activists have managed to make the parameters of what constitutes an acceptable conscientious objection a contentious political issue. Any success in curtailing these rights will rely on a severely defective understanding of what precisely a conscience protection defends. In the United States, public figures, agencies, and likely a large section of the American people view conscience as a subset of religious rights, thus allowing them to dismiss or marginalize it in our "pluralistic" society. In reality, conscience is a rational, not religious function.

The United States has not been alone in fending off attacks against physicians' conscience. As Lea Singh has eloquently laid out on MercatorNet, the College of Physicians and Surgeons of Ontario (Canada) recently tried to force doctors to refer for abortion-only to be resisted, and leave the matter in the less-than-capable hands of the Ontario Human Rights Commission. Similar actions were taken in the Australian state of Victoria.

In the United States, as in Ontario, the impetus for the recent debate on physicians' conscience came from the position of a medical professional organization, the American College of Obstetricians and Gynecologists (ACOG). In November 2007 the Ethics Committee for ACOG issued an opinion stating that an obstetrician ought to refer for abortions if she objects to performing them herself. This coincided with the obstetrics certifying board, the American Board of Obstetricians and Gynecologists (ABOG) issuing a bulletin on board certification that listed as a possible reason for decertification non-compliance with ACOG ethical standards.

In short, the combination of these two positions made it possible that pro-life obstetricians who refused to refer for abortion would lose their certifications and thus their livelihoods.

In response to this, the Secretary of the Department of Health and Human Services, Mike Leavitt, decided to take action in defending the conscience protections of physicians by issuing new regulations. These regulations apply the three pertinent pieces of federal legislation protecting physicians' conscience: the Church Amendments, Section 245 of the Public Health Services Act, and the Weldon Amendment. While they are on the books, there were no regulations in place to help enforce them until Leavitt proposed the pending regulations this summer.

(For more on the history of these regulations and their impact see Bill Saunders and my Family Research Council paper "Conscience Protection in Health and Human Services Regulations.")

Making abortion a positive right

These pending regulations, once entered into the Federal Register, will go a long way in providing physicians with adequate protection for their conscientious objections. Nevertheless, protecting the conscience rights of doctors is a fight that will likely continue well into the future, since conscientious objection is an obstacle to the international pro-abortion movement that must be overcome in order for them to achieve their goal of "universal access" to abortions.

As Maureen Kramlich has showed in the Fordham Urban Law Journal, over the past 30 years there has been a change in how the left has publicly approached the question of abortion, changing their conception from one of a "negative right" to one of a "positive right." Abortion in the context of Roe v. Wade is something to which one has a right in the sense of being able to obtain an abortion without government influence (a so-called negative right).

But, increasingly, the international pro-abortion movement presents abortion as something that women have a right to be granted. That is, women no longer can simply go about the business of having an abortion without external meddling; rather meddling is necessary to ensure that each and every woman can obtain an abortion should she desire one (a so-called positive right). As such, a doctor who refuses to be complicit in an abortion can deny a woman that right by inconveniencing her or possibly denying her effective access to abortion. The positive right to abortion demands that such circumstances be eradicated.

Active steps

Concrete examples of this change in the course of activism can be seen in recent public stances by the International Planned Parenthood Federation. IPPF put out a lengthy document entitled "Access to Safe Abortion: a tool for assessing legal and other obstacles." This document is intended to be a primer for those seeking to change the abortion laws in countries where abortion is restricted, by showing the typical legal obstacles to abortion and instructing activists how to go about eliminating them.

Section 12 of the document is "Conscientious Objection," a concept that "shields providers from liability for refusing to offer services that their patients are legally entitled to receive." These clauses can "deny access to services and violate providers' duty of care to patients." As such any conscientious objector ought to "give notice" to her patients that she objects to certain "care" on moral grounds and be prepared to refer them to those who lack such compunctions.

Likewise a late 2007 UN-sponsored conference in England, "Women Deliver", emphasized the impediment caused by conscientious objection and the need to limit it as a necessary step to achieving universal abortion-on-demand.

These international pro-abortion norms have been adopted here in America by many organizations that filed comments with HHS on the proposed regulations. The American Medical Association (AMA) argued that the new regulations ought not to be promulgated because it might "undermine patients' access to medical care and information." Doctors who follow their conscience might violate their "paramount responsibility and commitment to serving the needs of their patients". Put another way, doctors may have moral qualms with the practice of abortion, but those personal moral beliefs cannot interfere with the wishes of their patients or the determinations of what constitutes adequate medical care by the bureaucratic establishment of the medical profession.

The true nature of conscience

Part of how opponents to conscientious objection can make these claims effectively is through a common misconception concerning the nature of the debate. Oftentimes it is seen as a conflict between secular, medical right on the part of women seeking abortions, and a religious, sectarian right on the part of the doctors who do not wish to perform or refer for them. This misconception is exemplified in comments filed by members the Equal Employment Opportunity Commission. They contend that "the proposed regulations may violate the Establishment Clause" of the Constitution -- because the receipt of federals funds is conditioned "to give preference to particular religious beliefs."

Of course, this view is far from the truth: conscience is not a subset of religious belief but rather a subset of rational action. When one acts in keeping with his conscience, it is a rational determination of what the right action is in a specific set of circumstances as it relates to larger, more abstract moral principles. In other words, a doctor may believe that it is immoral to take innocent human life, and thus abortion is an immoral action. When presented with the occasion to perform or refer for an abortion, that doctor is forced to make a moral judgment, informed by his prior beliefs about the immorality of abortion. That moral judgment prevents him from performing or referring for the abortion and that is what is termed his conscientious objection.

Conscience itself is morally neutral, and operates independent of moral belief, since it is the rational application of accepted moral norms. Those moral norms are the beliefs of the individual, which, through conscience become moral judgments in the practical situations of everyday life. One can err on one's moral judgment-just as one can make a mathematical error-or one can make such moral judgments based on faulty moral premises (what we would call in improperly formed conscience, since it is the rational application of faulty norms).

But conscience itself is not a moral or religious belief; it is a rational faculty that allows us to apply our religious or moral beliefs. If professional organizations and governments wish to force physicians to violate their own consciences, they are not forcing them to violate their religious tenets or moral beliefs, but rather their very moral compasses implicit in their rationality.

Getting past the straw man of conscience as a religious artifact, the argument against medical conscientious objection is premised on the belief that the moral judgments of the individual must necessarily fall by the wayside in order to preserve the "greater good" in the form of "access to reproductive health services."

The moral problem with this position is neither a new one, nor a sectarian one. It is an argument that has been regarded as unsound going back to classical antiquity, and what Cicero called "the first mandate of justice": that one not harm another person unless wounded by injury, and then that one use common things for the common good. Justice requires that a person is first obliged to do what is right himself, and then look to the common good. Just like any other moral agent, doctors should be allowed to adhere to this same moral standard in the application of their consciences.

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