The importance of orientation
Review of Health Care Providers' Consciences
and Patients' Needs:
The Quest for Balance
William A. Galston and Melissa Rogers
Brookings Institution, Governance Studies, 23 February, 2012.
Sean Murphy*
Full Text
In June, 2011, as it was becoming clear that the United States was moving
towards a major confrontation on freedom of conscience in health care, the
Brookings Institution in Washington, D.C. convened a symposium of
theologians, philosophers, legal scholars, health practitioners and
advocates representing different perspectives on the subject. The
participants spoke "off-the-record," probably generating a more free-ranging
and thoughtful discussion than would have been possible had individuals
thought that their remarks would be cast in stone and then thrown back at
them in subsequent dialogue.
The proceedings informed independent research by William A. Galston, a
Senior Fellow at Brookings, and Melissa Rogers, director of Wake Forest
University Divinity School's Center for Religion and Public Affairs. Drawing
from the symposium when appropriate, but citing or quoting participants only
with their express permission, Galston and Rogers produced a report that
reflects their own views on freedom of conscience in health care.1
Health Care Providers' Consciences and Patients' Needs: The Quest for
Balance appeared in February, 2012, in the midst of an uproar about
freedom of conscience and religion that continues to wrack the United
States. Thus the cool, careful, measured and even-handed approach taken by
the authors is admirable and particularly welcome.
The Introduction
The five page introduction opens with brief description of a conflict
between a hospital and nurses objecting to abortion, which was settled in
favour of the nurses after they sued. It then outlines the broader and more
complex controversy generated by the Department of Health and Human Services
(HHS) plan to force employers to provide insurance for sterilization and
contraceptive and embryocidal drugs and devices, even if they find such
services morally objectionable. The authors note that both disputes expose
"longstanding tensions between claims of conscience and laws of broad scope
and application" that are "well-known to experts but less so to public
officials and most citizens."
The references to conscientious objection both by those closely
associated to a specific procedure in their workplace and by those more
distantly associated to contentious services through health insurance
suggest an underlying relationship that cannot be ignored. Later in the
report, the authors recognize what is implied in this juxtaposition: that
federal health care reforms and theHHS birth control mandate are "changing
the landscape." They also warn that "a failure to value the right of
conscience in one context surely threatens that right in other contexts."
These observations support the concern that the outcome of the HHS
confrontation, which is occurring at an institutional level, is likely to
have an impact on individual freedom of conscience.
Part One: Conscience in General
Conscience in Religion and Philosophy
After touching upon the most widely accepted attributes of conscience,
the authors offer an overview of the perspectives of Catholic and Protestant
Christianity and Judaism. While they assert that "the idea of conscience
does not fit comfortably into a Jewish framework," the discussion of nuances
and differences within the Jewish tradition expose potentially fruitful
points for reflection and dialogue.
The authors prudently decline to discuss conscience within the context of
non-western and non-religious faiths because of problems of interpretation,
but the absence of an Islamic perspective is regrettable. While Islam has
historically been considered a "non-western" faith, University of Virginia
Professor Abdulaziz Sachedina, an advisor to the Protection of Conscience
Project, notes that monotheistic Islam "shares its spiritual moral and
cultural genome with Judaism and Christianity."2
The authors do not refer to the fact that
professional ethical norms of western medicine have generally developed
within and not in opposition to Christian teaching.
Roman and Greek Stoicism and the philosophy of Immanuel Kant are
acknowledged to offer well-developed explanations of conscience. The authors
also draw attention to manifestations of "secular conscience" in
professional life, where unique moral responsibilities associated with the
practice of medicine or journalism may conflict with the expectations of
regulatory authorities or the law. Very little is said about conscience in
this context. The authors do not refer to the fact that professional ethical
norms of western medicine have generally developed within and not in
opposition to Christian teaching. This point is important because some
commentators insist that "the ethics of the profession" ought to supersede
the moral convictions of a professional, while others suggest that one
person can have two consciences, one "personal" and the other
"professional." These claims - and their rejection - are features of the
polemical landscape the authors are attempting to describe.
Discussion of philosophical and religious understandings of conscience is
necessarily limited because of complexity of the subject and the brevity of
the report. It is followed by a succinct but highly informative discussion
of conscience within American legal and constitutional history.
Conscience in U.S. Constitutional History
They point out that the constitutional guarantee of
free exercise of religion implies that, at some point, a court may be forced
to distinguish between what counts as "religion" and what does not: that a
secular authority may have to define what it means to be "religious."
The authors explain that early constitutional debates began with
discussion of freedom of conscience, but ultimately produced a First
Amendment that refers only to freedom of religion, an historical fact that
can have significant consequences in constitutional law. They point out that
the constitutional guarantee of free exercise of religion implies that, at
some point, a court may be forced to distinguish between what counts as
"religion" and what does not: that a secular authority may have to define
what it means to be "religious." Although the report does not mention it,
this is one of the most contentious issues in the HHS conflict.
Having considered the origins and language of the First Amendment, the
authors introduce the reader to interpretive problems created by the
Declaration of Independence, which has both theological and rationalist
foundations and is associated explicitly with a Creator "In practice," they
ask, "how can the law distinguish between this religion of reason and other
comprehensive views. . . that claim an exclusively rational foundation for
binding duties?"
And does the Declaration's reference to a creator imply that
religions that do not recognize a creator are to be denied constitutional
protection?
The authors demonstrate that the approach of the
U.S. Supreme Court has evolved from a literalist reading of the First
Amendment to a more expansive interpretation that has brought "explicitly
secular beliefs" within its scope . . .
The authors demonstrate that the approach of the U.S. Supreme Court has
evolved from a literalist reading of the First Amendment to a more expansive
interpretation that has brought "explicitly secular beliefs" within its
scope, if they are functionally equivalent to religious beliefs. The later
rulings, they say, "gave force to an understanding of conscience that the
framers of the First Amendment did not contemplate, or rejected outright."
With this assertion one encounters another layer of complexity the authors
wisely avoid: whether the constitution should be interpreted dynamically
(frequently associated with 'judicial activism'), or according to the
original intent of its authors, or its original meaning.
In the final section of Part One, the authors shift imperceptibly from a
discussion of the meaning of conscience in philosophy, religion and law to
problems associated with the exercise of conscience. They begin with a
consideration of two theoretical problems that have great practical
significance. First: if conscientious objection is permitted to
democratically enacted laws and to the policy decisions of democratic
authorities, "conscience . . .becomes indistinguishable from political
decision-making." Second: if legal obligations can be avoided simply by
making a claim that purports to be based upon a religious belief, "everyone
could mouth the language of recognized exemptions, and laws would become
unenforceable."
One response to this is to insist upon obedience to all generally
applicable laws, denying any right to conscientious objection or to
accommodation of religious or conscientious convictions.
This was the approach taken by the U.S. Supreme Court in 1990, though the
ruling was somewhat qualified by the Court's decision to permit legislatures
to enact statutory exemptions and accommodations. The authors explain that
this extremely unpopular ruling resulted in the passage of the Religious
Freedom Restoration Act (RFRA) three years later. The RFRA forces the
government to prove that a law that imposes a substantial burden on the free
exercise of religion serves some compelling state interest, and serves that
interest in "the least intrusive and restrictive" way.
While the authors do not carry the discussion further, it is obvious that
what counts as a "substantial burden" or a "compelling interest" are likely
to be disputed, as will the question as to whether there are less intrusive
or restrictive means available to accomplish the government's purpose.
Part Two: Conscience in the Context of Health Care
General Considerations
. . . refusal to provide some services for moral or
religious reasons occurs within a system in which it is customary to refuse
to provide services for other reasons.
The discussion of conscience in health care begins by considering the
nature of the health care profession, as exemplified by physicians. The
first point is that the physician-patient relationship is voluntary;
physicians are not obliged to accept a patient. Having accepted a patient,
physicians also accept the responsibility to act always in the patient's
interest, but this does not imply that they must always do what the patient
wants. Further: physicians may specialize or limit their practices,
providing some services and not others. Health care institutions have the
same freedom. The authors observe that refusal to provide some services for
moral or religious reasons occurs within a system in which it is customary
to refuse to provide services for other reasons.
Against this, they note that state licensing of health care professionals
"creates ethical as well as legal responsibilities." Here they introduce the
familiar argument that licensing - which is done to protect patients - gives
the licensed professionals a monopoly on the provision of a wide range of
services. They argue that this does not mean that every physician and
hospital must offer all of the services, but assert that there is
"some
obligation" on the health care profession as a whole to ensure "that needed
services are provided to patients in a timely and competent manner."
"Conscientious objectors," say the authors, "often request exemptions
from broad policy and legal requirements" which may involve costs to the
state if it permits the exemptions. The claim that such requests are
frequent is open to question.
Citing abortion as the principal example (assisted suicide would be
another), the authors recognize that there are fundamental disagreements
about whether or not a service that may be provided by health care
professionals is actually health care or medical treatment. They do not,
however, suggest how such disagreement can be resolved.
Current Law on Conscience in the Health Care Context
Turning to existing protection of conscience laws, the authors review
federal legislation (the Church amendment and its subsequent revisions),
cite Guttmacher Institute statistics on the number of states that have such
statutes, and discuss the use of non-discrimination and accommodation
statutes like the Religious Freedom Restoration Act and Title VII of the
1964 Civil Rights Act. They also outline the short and turbulent history of
HHS conscience regulations under Presidents Bush and Obama.
Absolute protection of a religious institution
or practice that disadvantages those outside the denomination could be
challenged under the First Amendment as a kind of "establishment of
religion."
The report draws attention to two important legal considerations. First:
accommodation of religious belief under Title VII is expected to the point
of "undue hardship," but the Supreme Court has defined "undue hardship" to
an employer as anything beyond a minimal cost or burden. Second: government
accommodation of religious belief may violate the First Amendment if the
accommodation imposes significant burdens on others. Absolute protection of
a religious institution or practice that disadvantages those outside the
denomination could be challenged under the First Amendment as a kind of
"establishment of religion."
What law and policy should be:
Areas of agreement and disagreement
Almost one third of the report considers agreement and disagreement about
answers to six questions. Only points of particular interest with respect to
each are noted here.
● Who should be permitted to refuse to provide, pay for or assist in the
provision of certain health care services?
There is disagreement about whether the exercise of
freedom of conscience should be determined by profession (nurse, pharmacist,
physician), by relationship with a patient, or upon the degree of
involvement with the procedure in question. The authors found general
support for the proposition that an employee should not be able to claim a
conscientiously based exemption to a substantial portion of the duties of a
position. While the principle is satisfactory, it remains necessary to
determine what constitutes a "substantial portion" of the duties in a given
case, and the authors acknowledge that this may be challenging. They do not
raise the problem of conflicts arising from a change of duties imposed by
reorganization by the employer, which was the situation in the nurses' case
they cited in the Introduction.
● Which institutions, if any, should be permitted to refuse to provide,
pay for or assist in the provision of certain health care services?
Catholic theologian Daniel C. Maguire. . .
apparently advocates . . . eliminating conflicts of conscience for
denominational health care facilities by eliminating the facilities.
In addition to noting the disagreement about whether
or not a health care institution can have a "conscience," and whether or not
protection of conscience measures should apply exclusively to health care
institutions operated by religious groups, the authors draw attention to a
suggestion from Catholic theologian Daniel C. Maguire. He argues that
religious health care institutions served a purpose when they were the only
health care providers accessible to the poor and did not receive government
funds, but are now redundant, especially since they are so heavily dependent
on public funding. He apparently advocates the transformation of religious
to non-religious institutions, thus eliminating conflicts of conscience for
denominational health care facilities by eliminating the facilities. This
has already begun to occur in Arizona and Saskatchewan following complaints
about Catholic prohibition of abortion and sterilization.3
In Switzerland this kind of transformation has been completed.4
● What are appropriate grounds for conscientious refusals?
In most cases, conscientious objection is to a
procedure or service that is deemed intrinsically immoral by the objector.
However, objections sometimes arise because of circumstances related to the
patient. For example: a physician who accepts the use of contraception
within marriage may object to providing it for unmarried persons. The
authors emphasize the view that this is a form of unjust discrimination
based on characteristics of a patient. While they acknowledge a dissenting
opinion that the issue is not always clear, they fail to explain that the
moral evaluation of an act may be affected by the circumstances (i.e, sexual
intercourse may be viewed as morally licit or illicit, depending upon the
marital status of the parties). This is an unfortunate and damaging
omission.
The implication that religious and moral beliefs may be
irrational by their very nature and that the law must support irrationality
is a caricature of religious beliefs and the position of those who support
freedom of conscience in health care.
Much more significant is their assertion that to
require an objection to have a factual basis may be inconsistent with a
ruling by the U.S. Supreme Court that religious beliefs need not be
"acceptable, logical, consistent or comprehensible." Thus, the authors imply
that a religious objection to a drug on the grounds that it may cause the
death of an embryo may not be overruled even if it is shown that the drug
does not do so. The implication that religious and moral beliefs may be
irrational by their very nature and that the law must support irrationality
is a caricature of religious beliefs and the position of those who support
freedom of conscience in health care.
● What should conscientious objectors be able to refuse to do? Should
providers be able to raise an objection to any health care service, or just
some of them?
The report recognizes that there is no consensus
about which services or procedures may give rise to conscientious objection,
though some argue for singling out those that result in death. However, the
authors report widespread agreement that an objector does not have the right
to actively prevent a patient from accessing services by, for example,
tearing up a prescription.
● What conditions must be present for conscientious objection to be
honoured?
The response to this question produced a lengthy
discussion. According to the authors, a minority hold that objections should
always be respected, while the majority believe that some kind of balance
must be struck between conscience and access, especially in medical
emergencies. They note disputes about whether access is a matter of
convenience or necessity, how to evaluate inconvenience, and the problem of
access in communities where the only health care workers refuse to provide a
contentious service. There are significant differences of opinion about
whether or not "public" rules should govern "public" services, and the
whether or not "public" funds should be denied to those who do not adhere to
"public" policy. Holly Fernandez Lynch's suggestion of an "institutional
compromise" is given a hearing.
● What sort of rules should govern disclosures of conscientious
objections, notifications regarding alternative providers, and referrals to
other providers?
According to the authors, there is general agreement
that an objecting health care worker or institution is obliged to notify
patients in advance, the form and content of such notice being a matter some
debate. It is also agreed that objectors must not harass or evangelize
patients. The authors describe the issue of referral as "deeply divisive,"
but neglect to identify the problem of complicity as central to the
division.
Conclusion: Suggestions for Policymakers
The authors avoid detailed recommendations, but close with eleven
suggestions, most of which can accepted as they stand, or subject to some
qualifications.
The first is purely pragmatic: "Don't spend much time looking for bright
line solutions." Their advice is based upon the conviction that the
differences among the parties to the disputes are foundational:"there is no
way of resolving clashes over first principles." A proposal that completely
satisfies one party will, they warn, antagonize their opponents and cause
lawsuits and legislative and regulatory battles, effectively thwarting any
resolution. Understood as a warning against simplistic expectations (rather
than as an invitation to utilitarian ethical horse-trading) the suggestion
is reasonable.
Five more (paraphrased here) can be endorsed:
● Conscientious objection may be acceptable, but actively obstructing a
service never is.
● Conscientious objectors must not harass or evangelize patients.
● Defending the right to conscientious objection need not imply support
for the merits of the objection.
● Recognize that moral diversity in health care is a public good.
● Whenever possible, try to respect competing principles and divergent
interests.
The last of this group is closely related to the warning against "bright
line solutions" with which the authors begin. Taken together, they reflect
an awareness that, in some cases, policymakers may be confronted with
problems of irreducible complexity.
A seventh suggestion may be accepted, subject to an important
qualification:
● Accept the presumption of non-discrimination and equal treatment of
individuals as a basis for public policy.
The approach is acceptable only if it is agreed
that an objector is entitled to take into account not only the intrinsic
nature of the service, but the circumstances that, from his
perspective, are relevant to assessing its morality.
Project comment: This recommendation
refers to a refusal to provide a service for some reason connected with the
status of the patient. The goal is to ensure that objections are not to the
person (as in the case of racial discrimination) but to conduct (such as
extra-marital sex). The authors suggest that the burden of proof should lie
on an objector to demonstrate that refusal based on lifestyle (such as
marital status) is not discriminatory. This does not preclude the
possibility of objections in such circumstances, but puts the objector on
notice that he must explain how providing the service would make him morally
complicit in the conduct enabled by it. The approach is acceptable only if
it is agreed that an objector is entitled to take into account not only the
intrinsic nature of the service, but the circumstances that, from his
perspective, are relevant to assessing its morality. Otherwise, as Holly
Fernandez Lynch demonstrates, the presumption may become a de facto strategy
for the suppression dissenting moral views.5
A recommendation concerning disclosure can be accepted in part.
● Early and full disclosure of services not provided is expected, with
complete and prompt disclosure of available alternatives. The authors admit
that there is no consensus that referral is required, but assert that an
objector may be forced to notify the patient of available alternatives.
Project comment: It is common ground
that conflicts should be avoided - especially in circumstances of elevated
tension - and that they often can be avoided by timely notification of
patients, erring on the side of sooner rather than later. However, it is
unreasonable to expect physicians or institutions to anticipate, in advance,
every conceivable request that might be made by patients.
The interests of patients and physicians are
best served by open and continuing communication, not inflexible
notification protocols.
The interests of patients and physicians are best
served by open and continuing communication, not inflexible notification
protocols. On the part of the physician, this involves a special
responsibility to be attentive to the spoken and unspoken language of the
patient, and to respond in a caring and truthful manner. Notice should be
given when it would be apparent to a reasonable and prudent physician that a
conflict is likely to arise. In some cases - but not all - this may be when
a patient is accepted. The same holds true for notification of patients when
a physician's views change significantly.
With respect to the provision of information, one
must distinguish explicitly between information needed by a patient in order
to make an informed decision about treatment, and the name and address of
someone willing to provide the contentious service. Providing the first kind
of information does not, in the Project's experience, generate "moral
distress" among objecting physicians. However, they often refuse to provide
information about where to obtain a procedure to which they object because
they consider that to be a form of unacceptable complicity in an immoral
act.
. . .it is disingenuous to suggest that
objectors should be compelled to provide contact information for service
providers on the ground that communicating knowledge or information to a
patient is always a morally neutral act.
Precisely the same view is sometimes reflected in the
policies of regulatory authorities. If a physician in British Columbia were
to give her the address of someone willing to provide a sex selective
abortion, he would risk prosecution for professional misconduct by the
College of Physicians and Surgeons because the College believes that sex
selective abortion is "socially repugnant" and that "it is unethical for
physicians to facilitate such action."6 The American Medical Association
(AMA) prohibits physician "participation" in executions, which is defined to
include "rendering technical advice."7 The AMA also prohibits physician
participation in torture, which includes"providing or withholding . .
.knowledge to facilitate the practice of torture."
8
It is true that an undetermined number of objectors
might be willing to give some kind of general information to patients: to
consult a telephone directory or a medical regulator's website. But the
preceding examples demonstrate that it is disingenuous to suggest that
objectors should be compelled to provide contact information for service
providers on the ground that communicating knowledge or information to a
patient is always a morally neutral act.
The three remaining recommendations (abbreviated below) are problematic.
● "Whenever possible, move debate from principles to specifics. . .[A]
fact-rich description of what is at stake. . . will make some proposed
resolutions seem fairer and more reasonable than others."
The recommendation presumes an agreement about
moral principles that the authors admit may not exist. . . . One does
not avoid disputed principles by adopting solutions that rely upon them.
Project comment: The authors are
aware that they cannot bridge the deep differences of principle that divide
the parties involved in the conflict about freedom of conscience in health
care, so their desire to shift discussion away from irreconcilable
differences is understandable. However, the example they offer actually
illustrates the problem with the recommendation. They observe that nurses
directly involved in an abortion are not doing the same kind of work as
those who "perform routine administrative duties tangentially related to the
procedure." True enough, but this alone is insufficient to determine which
group can be said to participate in the procedure and might have a claim to
conscientious objection, unless there is already agreement about what counts
morally as "participation." The recommendation presumes an agreement about
moral principles that the authors admit may not exist. This was precisely
the situation in the case of the objecting nurses offered in the
introduction to the paper. One does not avoid disputed principles by
adopting solutions that rely upon them.
● "Distinguish between what matters and what doesn't. . . Reasonable
people will see the difference."
Project comment: One might hope that
reasonable people can agree, but the authors themselves admit earlier in the
paper that this is not always the case, and that this can give rise to
differences that are "worthy of respect." Agreement about "what matters and
what doesn't" is impossible in the absence of a common moral standard. Some
agreed-upon standard is also implied in the concepts of "substantial or
undue burden." The recommendation effectively invites policy makers to
establish their own views the norm.
● Take the logic of institutions seriously.
Where assisted suicide is legal, does it thereby
become a need that "the profession" is obligated to meet?
Project comment: Contrary to what
might be expected, this is not a reference to the moral integrity of health
care institutions. The authors' meaning would be better expressed as, 'Take
employment and professional responsibilities seriously.' That is: it is not
reasonable to accept a job or professional role "while claiming a broad
exemption" from the responsibilities associated with the position.
Unfortunately, it is difficult to distinguish this recommendation from
assertions that, for example, physicians who object contraception should not
practise clinical medicine. They put forward here the argument by Holly
Fernandez Lynch that "the profession as a whole . . .has an obligation to do
everything it can to meet the needs of patients; not so with individual
practitioners." Collective cooperation can provide a means to provide
contentious services without involving objectors, and this is likely an
effective pragmatic method of accommodating both patients and physicians.
But that the "needs of patients" include morally contentious services is an
assumption that reflects contested anthropological and moral judgements.
Where assisted suicide is legal, does it thereby become a need that "the
profession" is obligated to meet?
The orientation of the report
It is hardly surprising that the authors focus on what others (not the
authors) have called "the problem of conscientious objection" in health
care. They are responding to developments in the United States, where some
health care workers conscientiously object to and refuse to provide some
services. This has disturbed those who want such services or believe that
they should be provided, and the difference of opinion has caused serious
legal and political problems.
. . . even if the controversy begins with conscientious objection (and
that is disputed) it does not follow that the problem is
conscientious objection.
However, even if the controversy begins with conscientious objection (and
that is disputed) it does not follow that the problem is conscientious
objection. One could as readily describe the problem as one of intolerance
for moral or religious beliefs, or of social irresponsibility: that too many
American health care workers are unwilling to do what they believe to be
gravely wrong. The authors' decision to discuss conscientious objection in
health care rather than intolerance of moral beliefs suggests an orientation
that is suspicious of the convictions of those who challenge the dominant
professional and cultural ethos.
This orientation is also evident in the authors' terminology. They
acknowledge that there is a significant difference of opinion about whether
or not controversial services like abortion are, in fact, legitimate forms
of health care. It is obvious that to decide one way or the other on this
point will determine the course of subsequent discussion, but the authors
nonetheless use the terms "health care" or "health services" in relation to
contentious services, and (as illustrated above) presume that such services
all address patient "needs." This introduces a subtle but continuous bias in
their presentation.
But the most striking example of bias is found in their formulation of
key questions, beginning with the first: "Who should be permitted to refuse
to provide, pay for or assist in the provision of certain health care
services?"
The question includes no reference to the reason for the refusal. Especially
when combined with the loaded reference to "health care services," this
could easily create an impression of unreasonableness that inclines the
reader against refusal. However, one can assume, from the context, that the
authors mean refusals for reasons of conscience, whether the reasons are
moral or religious. Thus, we can rephrase the question to incorporate the
element of conscientious objection and attenuate the description of the
services:
"Who should be permitted to refuse to provide, pay
for or assist in the provision of lawful services that he believes to be
wrong?"
The authors' remaining questions can be similarly rephrased:
"Which institutions, if any, should be permitted to
refuse to provide, pay for or assist in the provision of lawful services
that they believe to be wrong?"
"What are appropriate grounds for refusing to do what
one believes to be wrong?"
"What should people be able to refuse to do? Should
they be able to refuse to provide any lawful service they believe to be
wrong, or just some of them?"
"Upon what conditions may one honour a refusal to
provide a lawful service because it is believed to be wrong?"
"What sort of rules should govern disclosures of what
lawful services one will refuse to do because they are believed to be wrong,
notifications regarding other people who would be willing to provide such
services, and referrals to others who would provide such services?"
It becomes clear that the premise underlying all
of these questions is that people and institutions ought to do what they
believe to be wrong, and that refusal to do what one believes to be
wrong requires special justification.
It becomes clear that the premise underlying all of these questions is
that people and institutions ought to do what they believe to be wrong, and
that refusal to do what one believes to be wrong requires special
justification. This is exactly the opposite of what one would expect. Most
people believe that we should not do what we believe to be wrong, and that
refusing to do what we believe to be wrong is the norm. It is wrongdoing
that needs special justification or excuse, not conscientious objection.
Small wonder that the authors find it difficult to make the necessary
distinction between the exercise of conscientious judgement and the morality
of particular procedures.
The conscience question is not whether particular
health services are legitimate, but whether an individual or institutional
provider has the liberty to abstain from providing them due to religious or
moral objections. Nonetheless, it often proves difficult to divorce these
matters.
It is probably impossible to divorce the dispute about the legitimacy of
services and the legitimacy of the exercise of freedom of conscience if one
begins with the conclusion that contested services are health services
(thus, legitimate) and that participation in perceived wrongdoing is the
norm, at least for health care workers.
This inversion gives the entire report an
orientation subtly but decidedly adverse to the exercise of freedom of
conscience in health care . . .
This inversion gives the entire report an orientation subtly but
decidedly adverse to the exercise of freedom of conscience in health care,
as illustrated in the three problematic recommendations. The orientation can
be illustrated by asking the authors' questions from the opposite
perspective:
"Who should be compelled to provide, pay for or
assist in the provision of lawful services that he believes to be wrong?"
"Which institutions, if any, should be compelled to
provide, pay for or assist in the provision of lawful services that they
believe to be wrong?"
"What are appropriate grounds for compelling someone
to do what he believes to be wrong?"
"What kind of wrongdoing should people forced to do?
Should they be forced to provide any lawful service they believe to be
wrong, or just some of them?"
If we ask the wrong question, we get the wrong answer. But how is one to
determine the right question when basic premises are in dispute? Had the
authors seen the problem as one of intolerance of moral beliefs, or if they
held that the contentious services are not health care, the problem of
orientation would remain. One cannot eliminate bias by substituting one form
of it for another.
Certainly, one could explicitly acknowledge one's bias so that readers
can take it into account. However, given the tone and carefully balanced
approach taken by the authors, it is very doubtful that they even recognized
the orientation given to their work by the context they adopted:
"conscience" within the context of "health care."
This may reflect the influence of Holly Fernandez Lynch, whose book is
cited and quoted at several points in the report. In her view, the central
issue is securing patient access to services when those who control access
to them are uncooperative.9 Within the
context of a book about patient access to services, she offers arguments
about the importance of freedom of conscience that are accessible and that
many people will find convincing. Her book is a very useful, but it is not a
book about freedom of conscience. The same can be said of Health Care
Providers' Consciences and Patients' Needs: The Quest for Balance.
Changing the context
It is no more appropriate to discuss the
regulation of conscientious objection in health care without reference
to freedom of conscience than it would be to discuss the regulation of
speech in politics without reference to freedom of expression.
What is missing from the report is a consideration of the nature of
freedom of conscience and its relationship to the human person and society:
the goods that it serves, the benefits it provides and the harms it wards
off or ameliorates. It is no more appropriate to discuss the regulation of
conscientious objection in health care without reference to freedom of
conscience than it would be to discuss the regulation of speech in politics
without reference to freedom of expression.
Adopting this wider perspective would make it somewhat easier to
distinguish between disagreement about the morality of procedures or
services and disagreement about the exercise of freedom of conscience. It
would also help to identify broader and potentially useful principles that
may otherwise be overlooked.
A principle that has been overlooked, both in the report and in the
Brookings' symposium last year, is that there is a significant difference
between preventing someone from doing something he believes to be right and
forcing him to do something he believes to be wrong. The distinction has
recently been emphasized by the Protection of Conscience Project. It permits
an approach that is divorced from moral disagreements about abortion and
other contentious services, but squarely within religious and secular
traditions that emphasize respect for the human person and the importance of
rational democratic pluralism.11
Closing comment
The authors have sought to build on what they believe to be common ground
among those who believe that protecting freedom of conscience and securing
access to health care are both important goals that can be harmonized. They
hope to encourage good will on all sides so that balanced approaches can be
found that will accommodate competing claims to the greatest extent
possible.
Health Care Providers' Consciences and Patients' Needs: The Quest for
Balance makes a good start in that direction. It is a significant
contribution to the current debate in the United States about freedom of
conscience in healthcare, notwithstanding the reservations and criticism
offered above.
The authors have indicated that the report is subject to revision.
One hopes that a future revision will incorporate the broader context and
change of orientation suggested here.
Notes
1. Galston, William A. and Rogers, Melissa,
Health Care Providers' Consciences and Patients' Needs: The Quest for
Balance. Brookings Institution, Governance Studies, 23 February,
2012.
2. Sachedina, Abdulaziz, Islamic
Biodmedical Ethis: Principles and Applications. Oxford University
Press, Oxford, 2009, p. 3.
3.& In 2006, St. Elizabeth's Hospital in
Humboldt, Saskatchewan, operated by the Saskatchewan Catholic Health
Association, decided to stop doing contraceptive sterilizations. Public
protests resulted, and a woman denied a tubal ligation filed a human
rights complaint. In June, 2007, St. Elizabeth's was transferred to the
Saskatoon Health Region and re-named the Humboldt District Hospital.
Three months later, the Saskatchewan Catholic Health Corporation agreed
to pay almost $8,000.00 to the complainant in the human rights action to
settle the case. CBC News, 13 September, 2007,
"Woman given settlement after being denied tubal ligation."
(Accessed 2012-03-27)
4. In 2002, the Swiss embassy in Canada
advised the Project that "there are no more hospitals existing in
Switzerland that are based on a catholic foundation; all of them are now
managed by secular directors." The situation was confirmed by the
General Secretary of the Swiss Bishops' Conference.
Letter
to the Protection of Conscience Project from the Embassy of Switzerland,
2 October, 2002; Letter to the Protection of Conscience Project from the
General Secretary of the Swiss Bishops' Conference, 6 January, 2003.
5. See the review of Fernandez-Lynch,
Holly, Conflicts of Conscience in Health Care: An Institutional
Compromise. Cambridge, Mass.: The MIT Press, 2008. (hereinafter
"Conflicts.")
"No 'invidious' discrimination".
6.& College of Physicians and Surgeons of
British Columbia,
Fetal Sex Determination. (Accessed 2012-03-27). See also
Society of Obstetricians and Gynaecologists of Canada Policy Statement
No. 198:
Statement on Gender Selection (November, 2007)(Accessed
2012-03-27); SOGC Policy Statement No. 192:
Fetal Sex Determination and Disclosure (April, 2007)
(Accessed 2012-03-27).
7. American Medical Association
Policy E-2.06: Capital Punishment (Accessed 2012-03-26)
8. American Medical Association Code of
Medical Ethics-
Opinion E.2.067: Torture. (Accessed 2012-03-6)
9. Conflicts, p. 24, 99, 224
10. See the
Project review of Conflicts of Conscience in Health Care: An
Institutional Compromise.
11. Murphy, Sean,
Notes toward an
understanding of freedom of conscience. Protection of
Conscience Project (March, 2012)