Abortion, Conscience, and Doctors

Public Discourse: Ethics, Law and the Common Good
29 October, 2010
Reproduced with permission

Christopher Kaczor *

Suggestions to end conscience protection ignore the importance of conscience and rely on a circular-and baseless-understanding of a woman's "right" to abortion. Following such suggestions would be detrimental to the entire health care system.

"If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors," declares Julian Savulescu of Oxford University. Savulescu's position, known as the "incompatibility thesis," contradicts important statements about the rights of conscientious refusal articulated by the American Medical Association, U.S. federal law, and international law. So, what reasons are given to justify the idea that doctors must perform abortions?

Savulescu offers several justifications for undermining conscientious objection: the first is an argument from inefficiency. Conscientious objection is inefficient because patients denied services that they request will have to seek out other doctors to get these services, wasting their time, energy, and money in the process.

Now, no one believes that all doctors have a duty to provide all possible legal and beneficial services (bracketing for the moment the disputed question about whether abortion is really beneficial care). Some doctors specialize in providing certain treatments and refuse to provide others for reasons of personal preference. For example, a particular doctor may choose not to perform cosmetic surgery, though legal and in some cases beneficial, even though this means that a patient must visit another doctor to get the requested service. If a mere lack of personal interest (in learning the required procedure) justifies not offering a service (despite the inefficiency for the patient), then a more weighty interest like personal integrity certainly justifies not providing the procedure.

A second justification for the incompatibility thesis offered by Savulescu is that some patients, "less informed of their entitlements, will fail to receive a service they should have received. This inequity is unjustifiable." So, in order that these patients not have their rights violated, we must not honor conscientious refusal to perform abortion.

. . .given that there are 1.2 million abortions performed per year in the U.S. alone, it is apparent that the current law protecting the right of conscientious refusal is not generally impeding the availability of abortion . . .

It is theoretically possible that some patients denied abortion by their doctors will end up not getting abortions at all. However, practically speaking, given that there are 1.2 million abortions performed per year in the U.S. alone, it is apparent that the current law protecting the right of conscientious refusal is not generally impeding the availability of abortion, which remains one of the most common medical procedures worldwide.

However, let's suppose that in a given situation a doctor's refusal to perform an abortion did in fact lead to a particular woman's not getting an abortion. Has this woman been denied what she is entitled to or what she should have received?

When we speak of her "entitlement" or what she "should" have received, these terms can be understood in a legal sense or in an ethical sense. Legally, in the United States, the Church Amendment protects the right of a doctor to refuse to perform an abortion, so a woman has no legal right to receive an abortion from an objecting physician. So it is false that a woman has been denied what she was legally entitled to or should have received under the law when a doctor refuses to give her an abortion.

Has a woman denied an abortion been deprived of what she is entitled to receive in an ethical sense? An answer to this question depends upon whether or not abortion is ethically permissible. As I have argued in my new book The Ethics of Abortion: Human Life, Women's Rights, and the Question of Justice, I believe that intentional abortion is morally impermissible. If this view is correct, then a woman denied an abortion has not been deprived of what she is entitled to receive. Indeed, if the pro-life view is correct, everyone has a duty not to get, perform, or formally cooperate with abortion.

If we understand the right to abortion as a claim right, then someone else-presumably the woman's physician-has a duty to provide the abortion. But understanding abortion as a claim right in this way begs the question at issue, which is precisely: Do doctors have duties to perform abortions?

Even supposing that abortion is morally permissible, we would then need to identify whether the right to abortion is a liberty right or a claim right. A liberty right allows a person to do a certain action, but implies no duty for others to assist in that action. The right to free speech, an important liberty right, means that an agent may speak, but there is no duty for others to help the agent to speak, say by giving the agent air time on television. A claim right, by contrast, implies the duty of others. The right to property of one person implies the duty of everyone else not to steal. If we understand the right to abortion as a liberty right, then it means that no one has a duty to assist in an abortion. If we understand the right to abortion as a claim right, then someone else-presumably the woman's physician-has a duty to provide the abortion. But understanding abortion as a claim right in this way begs the question at issue, which is precisely: Do doctors have duties to perform abortions? Appealing to the premise "they should have received the service" from their doctor is circular reasoning that merely asserts, in slightly different language, the disputed conclusion.

Savulescu offers a third argument from "inconsistency" against a physician's conscientious objection:

Imagine an intensive care doctor refusing to treat people over the age of 70 because he believes such patients have had a fair innings. This is a plausible moral view, but it would be inappropriate for him to conscientiously object to delivering such services if society has deemed patients are entitled to treatment.

Conscientious objection, in the context of abortion, is not a denial of services to particular kinds of people, but rather a denial of services of particular kinds of actions. Further, it hardly follows that because some acts of conscientious denial are unreasonable, immoral, or wrong, that all acts of conscientious denial are unreasonable, immoral, or wrong.

Savulescu continues, "Or imagine in an epidemic of bird flu or other infectious disease that a specialist decided she valued her own life more than her duty to treat her patients. Such a set of values would be incompatible with being a doctor." He goes on to argue that if preserving even the physician's life is insufficient justification for shirking one's duty to the well-being of patients, how much less could protection of a physician's conscience be justification for compromising the care of patients? The interests of the patients should trump the interests of health care workers in protecting conscience.

Savulescu's argument implicitly presupposes a highly controversial claim: that preserving physical welfare is of greater value than preserving moral integrity.

Savulescu's argument implicitly presupposes a highly controversial claim: that preserving physical welfare is of greater value than preserving moral integrity. This view is rejected by Socrates in the Crito, Thomas Aquinas in the Summa Theologiae, Kant in the Groundwork of the Metaphysics of Morals, and by the witness of contemporary figures such as Dietrich Bonhoffer, Martin Luther King, Jr., and Nelson Mandela, who were willing to suffer bodily harm rather than compromise what they held to be right. Furthermore, the interests of the patient do not always trump the interests of the doctor, otherwise all doctors would have to provide free services and house calls.

Finally, Savulescu offers what can be called the "commitments of the doctor" argument against conscientious objection. Doctors take on commitments to patient well-being. "To be a doctor is to be willing and able to offer appropriate medical interventions that are legal, beneficial, desired by the patient, and a part of a just health care system." Thus, the argument goes, since abortions are legal, desired by the patient, and part of a just health care system, the doctor must perform them. As Mark Wicclair points out, doctors do not in fact commit themselves to offering all legal, beneficial, and desired treatment. Podiatrists do not offer heart surgery; gynecologists do not treat cancer of the lymph. It is also implausible that doctors must provide any treatment that is desired by the patient; adopting Savulescu's standard would, in some cases, force physicians to amputate healthy limbs, prescribe drugs for recreational use, participate in physician assisted suicide and capital punishment, and attempt to alter the sexual orientation of patients who request it.

At issue, ultimately, is whether abortion really is an appropriate medical intervention compatible with the medical commitment to preserving life and health rather than taking them, whether abortion really is beneficial to women, and whether there is only one or really two patients involved in pregnancy.

Our current law protecting conscience should remain in place and receive robust defense not least because it helps to ensure a more ethnically diverse medical profession in addition to facilitating greater ideological diversity in the field. Given that Latinos are disproportionately Catholic and African-Americans are disproportionately Evangelical, and both are underrepresented in the medical professions, protecting them from performing abortions could help. As J.W. Gerrard notes, "professions may have problems recruiting and retaining talented members in certain specialties if they do not find a way to accommodate divergent views." The current law protects the autonomy of physicians, making the profession generally more attractive.

The current law also provides greater access to non-controversial health care for all people. If all Catholic hospitals and pro-life physicians are forced to choose between performing abortions and no longer providing any services, many of them will simply shut down. As a recent report noted, "615 Catholic hospitals account for 12.5% of community hospitals in the United States, and over 15.5% of all U.S. hospital admissions." The loss of these hospitals in addition to the loss of other pro-life health care providers would involve a devastating reduction in the availability of health care services, to the detriment of all. If one favors women's health (not just abortion, but women's and other people's overall health), then support should be given for conscientious objectors to abortion on pragmatic grounds.

Christopher Kaczor is Professor of Philosophy at Loyola Marymount and the author of The Ethics of Abortion: Women's Rights, Human Life, and the Question of Justice. This piece is adapted from his remarks delivered at the conference "Open Hearts, Open Minds, and Fair-Minded Words," held on the campus of Princeton University on October 15^th and 16^th, 2010.