When can a doctor conscientiously object?
America, 11 April, 2015
Reproduced with permission
Bernard G. Prusak*
Over the last decade, the culture wars in the United
States have broken new ground: They have become battles over
the rights of conscience. For example, now that same-sex
marriage is a right, the question before the U.S. Supreme
Court in the case of Masterpiece Cakeshop is whether its
sympathetic, telegenic owner,
Jack Phillips, is within his rights to refuse to make a
wedding cake for a gay couple. Similarly, under the Obama
administration, the court heard arguments more than once
over whether employers who object on religious grounds to
contraceptives or abortion should be exempted from having to
provide employees health insurance that includes such
services.
By contrast, debates over conscientious objection in
medicine have not had the same notoriety, though they have
broken out repeatedly among health care professionals and
medical ethicists since the turn of the century, when
there was a flare-up over pharmacists' refusing to fill
prescriptions for emergency contraceptives.
A bill currently before the House of Lords has brought
conscientious objection in medicine into widespread public
discussion in the United Kingdom, if not yet on the other
side of the Atlantic. The
Conscientious Objection (Medical Activities) Bill seeks
"to clarify the extent to which a medical practitioner with
a conscientious objection may refrain from participating in
certain medical activities."
It is the bill's expansion of what counts as "participation" that has provoked
pro-choice groups' opposition. The
Abortion Act of 1967 already provides that "no person
shall be under any duty…to participate in any treatment
authorised by this Act to which he has a conscientious
objection," with the exception of "treatment which is
necessary to save the life or to prevent grave permanent
injury to the physical or mental health of a pregnant
woman." The bill before the House of Lords expands "participation" to include
"any supervision, delegation, planning or supporting of
staff in respect of that activity."
In so doing, the bill directly responds to a
controversial U.K. Supreme Court ruling in 2014 in the
case of
Greater Glasgow Board of Health v. Doogan and Another.
That case involved two Roman Catholic midwives, Mary Doogan
and Concepta Wood, who worked as labor ward coordinators at
a Glasgow hospital. Ms. Doogan and Ms. Wood objected to
"delegating, supervising and/or supporting staff to
participate in and provide care to patients throughout the
termination process," that is, abortion. Limiting itself to
interpretation of the relevant statute, the Supreme Court
found that "'[p]articipate'…means taking part in a
'hands-on' capacity," and that delegating, supervising, and
the like do not fall under that description. Ms. Doogan's
and Ms. Wood's objections, then, did not qualify for
accommodation.
The debate over conscientious objection in medicine is
complicated in the United Kingdom by the fact that so many
health care providers are employed by the National Health
Service. All told, the
N.H.S. workforce numbered 1.7 million people in 2017.
N.H.S. health care providers are public servants, and so
it has been argued that "[p]ublic servants must act in
the public interest, not their own." The "Consensus
Statement on Conscientious Objection in Healthcare,"
produced by the University of Oxford's Uehiro Centre for
Practical Ethics in 2016, takes a similarly hard line. The
statement opens by declaring that "[h]ealthcare
practitioners' primary obligations are toward their
patients, not towards their own personal conscience";
insists that, when practitioners have a conscientious
objection, they have an obligation to refer patients to
another practitioner who is willing to perform the procedure
in question; and recommends that health care practitioners
who do qualify for exemptions on grounds of conscience
"should be required to compensate society and the health
system for their failure to fulfil their professional
obligations by providing public-benefitting services."
The debate has been joined by the philosopher David
Oderberg at the University of Reading. Mr. Oderberg's work
on the ethics of cooperation was cited by the U.S. Supreme
Court in the 2014
Hobby Lobby decision; now he has sought
to rebut objections to the bill before the House of
Lords and to counter the Uehiro Centre's "Consensus
Statement" through his own "Declaration
in Support of Conscientious Objection in Health Care,"
which is accompanied online by a preamble, policy
recommendations and responses to frequently asked questions.
(Full disclosure: I signed the declaration.)
Mr. Oderberg recognizes the complexity of the debate. For
example, it is noteworthy that he stipulates that
conscientious objectors must make appeal to a "religious or
ethical code…that has current or historic popular acceptance
across some significant portion of the society in which the
conscientious objector resides, or in some other society
where the code is readily identifiable." As he writes
further, "Freedom of conscience and religion in a liberal
society does not entail that 'anything goes.'" But he does
want to defend freedom of conscience not only from direct
participation in practices such as abortion, assisted
suicide and euthanasia, but also from "assistance or
co-operation" with such practices, including "facilitating
them by means of referral to another practitioner." And he
resists the reduction of health care professionals to "mere
functionaries" of the state or health care system.
The argument against allowing health care professionals
to refuse to refer patients for legal, professionally
sanctioned procedures typically turns on the claim that
providing referrals falls among the basic obligations of the
health care profession. As the medical ethicist Dan Brock
put the argument, if a physician is unwilling either to
provide the service in question herself, or to refer the
patient to another physician who is willing to provide it,
then she "should leave the professional role that has these
obligations."
This argument, however, begs the question of what
obligations the professional role in fact has, and in
particular whether providing referrals is always obligatory.
Mr. Brock is clearly right that an emergency physician who
becomes a Jehovah's Witness and refuses to perform blood
transfusions, or to refer to physicians who will do so,
needs to find another line of work. But this example hardly
clinches the case.
Mr. Oderberg proposes that the presumption in favor of
conscientious objection should be overturned "if it could be
shown that the act or practice in question were such that no
reasonable person could object to its performance in the
particular health care circumstances at hand." The
reasonable person standard Mr. Oderberg invokes here clearly
needs elaboration, but it is hard to imagine that objecting
to a blood transfusion to an emergency patient in need of
blood products could be deemed reasonable. By contrast,
reasonable persons object to elective abortion, assisted
suicide, euthanasia and a host of other services either
available already or on the horizon. Mr. Oderberg lists as
examples transgender surgery, extreme cosmetic surgery,
cloning, genetic engineering, the creation of chimeras,
cognitive enhancement and performance-enhancing drugs.
The bill before the House of Lords is opposed by the
Labour Party. Members of the governing Conservative Party
have
spoken in its favor, but the bill is by no means assured
of passage in either the House of Lords or the House of
Commons. Even Mr. Oderberg
characterizes himself as only a "qualified supporter" of
the bill, though he commends it as "an excellent start."
As health care becomes more government-regulated in the
United States - which seems inevitable given the
steadily mounting costs - it will not be long before our
conscience wars expand to a new theater. In the meantime,
before Fox News and MSNBC get into the mix, conscientious
citizens might get a head start by taking heed of the
current debate in the United Kingdom.