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Preventing conscientious objection in medicine from running amok: a defense of reasonable accommodation

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Abstract

A US Department of Health and Human Services Final Rule, Protecting Statutory Conscience Rights in Health Care (2019), and a proposed bill in the British House of Lords, the Conscientious Objection (Medical Activities) Bill (2017), may well warrant a concern that—to borrow a phrase Daniel Callahan applied to self-determination—conscientious objection in health care has “run amok.” Insofar as there are no significant constraints or limitations on accommodation, both rules endorse an approach that is aptly designated “conscience absolutism.” There are two common strategies to counter conscience absolutism and prevent conscientious objection in medicine from running amok. One, non-toleration, is to decline to accommodate physicians who refuse to provide legal, professionally accepted, clinically appropriate medical services within the scope of their clinical competence. The other, compromise or reasonable accommodation, is to impose constraints on accommodation. Several arguments for non-toleration are critically analyzed, and I argue that none warrants its acceptance. I maintain that non-toleration is an excessively blunt instrument to prevent conscientious objection in medicine from running amok. Instead, I defend a more nuanced contextual approach that includes constraints on accommodation.

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Notes

  1. The three specified limitations are: “Physicians are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and respect basic civil liberties and not discriminate against individuals in deciding whether to enter into a professional relationship with a new patient” [11, 1.1.7, par. 3]. The last limitation will be discussed below.

  2. The Code includes the following additional guideline: “Several factors impinge on the decision to act according to conscience. Physicians have stronger obligations to patients with whom they have a patient-physician relationship, especially one of long standing; when there is imminent risk of foreseeable harm to the patient or delay in access to treatment would significantly adversely affect the patient’s physical or emotional well-being; and when the patient is not reasonably able to access needed treatment from another qualified physician” [11, 1.1.7, par. 4].

  3. This strategy also begs the question by assuming that accommodation is incompatible with adequately protecting patients and ensuring that physicians who are accommodated will not violate their fiduciary duty to patients. Specifically, the strategy fails to consider whether enforceable constraints on accommodation, including, but not limited to, those cited in the Code, can protect patients from harms and excessive burdens. I will consider this issue in the following section.

  4. Martha Nussbaum cites a powerful image that Roger Williams uses to defend liberty of conscience: “To impose an orthodoxy upon the conscience is nothing less than what Williams, in a memorable and oft-repeated image, called ‘Soule rape’” [14, p. 37]. The reference to rape of the soul suggests that this statement was meant primarily as a defense of religious tolerance. Nevertheless, when a failure to accommodate secular core moral convictions results in a loss of moral integrity, it also can be experienced as an assault on one’s self or identity.

  5. In the final section, I will consider an argument that claims of conscience do not provide a pro tanto moral reason for accommodation.

  6. To illustrate the difference between core and peripheral moral beliefs, it is assumed that the perceived injustice in case 2 is among those that the intensivist routinely tolerates and therefore does not rise to the level of actions that are contrary to his core moral beliefs. However, this is not meant to imply that beliefs about justice cannot rise to the level of a physician’s core moral convictions.

  7. Conscientious objectors can call attention to unethical accepted practices. Past examples include physicians who objected to involuntary sterilization and physicians who objected to withholding surgery to correct duodenal atresia in newborns with Down syndrome.

  8. It would beg the question to assume that physicians who do not accept the ethical views of Savulescu and Schuklenk lack moral sensitivity, empathy, and compassion.

  9. It might be claimed that epistemic humility applies as well to objectors and justifies limitations on conscience-based refusals. However, this claim requires the debatable assumption that there is a moral obligation to be epistemically humble—even at the cost of one’s perceived moral integrity. Nevertheless, it is arguable that epistemically humble objectors would not obstruct patients’ access to the medical services they refuse to provide.

  10. It is beyond the scope of this paper to consider the legal protections, if any, that should be available to physicians who conscientiously object to providing specified medical services. Elsewhere, I critically analyze several US federal and state conscience clauses [6]. Many, I argue, are too broad. Typically, they are also too narrow insofar as they do not protect health professionals who believe that they have a moral obligation to provide a medical service when they are not legally permitted to do so.

  11. Holly Fernandez Lynch argues that, whereas individual physicians have considerable discretion to limit the services they provide, the medical profession has an obligation to ensure that a wide range of medical services are offered and accessible to patients [18].

  12. Savulescu and Schuklenk make a similar claim: “The scope of professional practice is ultimately determined by society, and … is bound to evolve over time” [8, p. 163]. Rhodes endorses a similar account of professional obligations [13]. She claims that they can be understood as the result of a covenant between society and the medical profession. Elsewhere, I examine covenant and contractual accounts of professional obligations and their implications for conscientious objection [6, 12].

  13. A similar objection applies to Rhodes’s covenant-based defense of incompatibilism [13]. The existence of conscience clauses in federal and state laws, institutional policies, and professional codes suggests that if there is a covenant between society and the medical profession, it does not endorse incompatibilism.

  14. This statement is followed by the following claim: “these protections are designed to protect Christian doctors’ convictions, despite feeble attempts at giving them a lick of neutrality” [20]. In a pluralist liberal democracy, it would be unjustified to enact legislation designed to exclusively protect Christian doctors’ convictions. However, even if a vast majority of physicians who exercise their legal right to refuse are Christians or accept Christian moral values, it does not follow that legal protections of conscience were enacted to protect Christian moral beliefs.

  15. As Dan Brock explains the “conventional compromise,” it exempts physicians and pharmacists from providing services or products that are against their conscience only if the following three conditions are satisfied: “(1) The physician/pharmacist informs the patient/customer about the service/product if it is medically relevant to their medical condition; (2) The physician/pharmacist refers the patient/customer to another professional willing and able to provide the service/product; (3) The referral does not impose an unreasonable burden on the patient/customer” [22, p. 194].

  16. The compromise approach that I endorse—reasonable accommodation [6]—is less restrictive than the conventional compromise and includes the following guidelines: “(1) Whenever feasible and apt, clinicians should provide advance notification to patients/surrogates, administrators, employers, etc. (2) Accommodation should not impede a patient’s/surrogate’s timely access to information, counseling, and referral. (3) Accommodation should not impede a patient’s timely access to health care services. (4) Accommodation should not impose excessive burdens on other clinicians, administrators, or organizations” [23, p. 94]. The reasonable accommodation guidelines are more context-dependent than the conventional compromise requirements in that they require a consideration of expected outcomes (e.g., whether accommodation will interfere with timely access to information and medical services or impose excessive burdens on other health professionals), rather than specified actions such as referral.

  17. Savulescu and Schuklenk consider eliminating physicians’ monopoly on medical services as a means of protecting access: “If conscientious objection continues to be tolerated in medicine and results in treatment denial, alternative ways of guaranteeing reasonable and fair access to these goods ought to be provided. One way of doing this is to de-monopolize the provision of the relevant service. If the quality of such a service could match that provided by medical professionals, and sufficient supply could be ensured, then this would be a viable alternative” [8, p. 164]. Subsequently, however, responding to Christopher Cowley [28], they express skepticism about measures to protect access:

    Cowley lauds the success of the Dutch system of a register of doctors willing to perform euthanasia. … As he notes, this works because there are plenty of doctors, knowledge of such a register is widespread and the Netherlands is a small country. But is this an appropriate solution to the problems caused by conscientious objectors? To create a register of doctors willing to prescribe contraception? Why should scarce health care resources be expended on such a system only to support what constitutes unprofessional conduct by health care professionals? Why should patients seeking a simple script for a prescription contraceptive be inconvenienced in their choice of doctor by such unprofessional conduct? [8, p. 169]

    Above, I questioned the assumption that any physician who objects to providing a legal and professionally accepted medical service is ipso facto engaging in “unprofessional conduct.” Moreover, in response to what Savulescu and Schuklenk apparently intend to be rhetorical questions, one reason for having resources spent and patients inconvenienced is to enable physicians to maintain their moral integrity.

  18. Responding to Schuklenk [20], Cowley claims that “the onus is not on the objectors to shape up or ship out, but on the public health system to arrange and fund (and financially encourage) extra GP and obstetrics posts to meet demand [for abortion]” [28, p. 362].

  19. According to the Guttmacher Institute, as of January 1, 2018, all but ten states had implemented at least one of the following major abortion restrictions: unnecessary regulations on abortion clinics, mandated counseling, a mandated waiting period, a parental involvement requirement for minors, and a prohibition on the use of state Medicaid funds to pay for medically necessary abortions [29].

  20. According to the Guttmacher Institute, as of August 1, 2019, twenty-four states had laws or policies that regulate abortion providers that “go beyond what is necessary to ensure patients’ safety;” seventeen states had “onerous licensing standards many of which are comparable or equivalent to the state’s licensing standards for ambulatory surgical centers;” eighteen states had specific requirements for procedure rooms and corridors and required facilities to be near to, and have relationships with, local hospitals; and thirteen subjected clinicians who perform abortions to “unnecessary requirements” (e.g., admitting privileges at a local hospital) [30].

  21. Hugh LaFollette and Eva LaFollette invoke a comparison with the alternative service requirement for conscientious objectors to military service [35, 36]. However, there are significant dissimilarities. First, whereas objecting physicians are not necessarily violating their professional obligations, it can be claimed that individuals who object to military service are refusing to perform an obligation of citizenship. Second, whereas accommodation need not excessively burden other health professionals, it can be claimed that individuals who refuse to perform military service unfairly shift the burden to others. Third, whereas objecting physicians perform public service by continuing to provide other medical services, it can be claimed that an alternative service requirement in the case of conscientious objectors to military service works to ensure that they will perform some type of public service.

  22. Curiously, although this condition applies to grounding beliefs (“intrinsic factors”), Card cites it as an “extrinsic factor”—placing it in the same category as constraints according to impact on patient well-being and consistency with professional norms.

  23. Another alleged justification for scrutinizing objectors’ reasons is a concern about access. I will consider this justification below.

  24. A less demanding reasonability requirement would not oblige individual physicians to justify their refusal if they object to providing a medical service, such as abortion, assisted dying, palliative sedation to unconsciousness, or donation after circulatory death, about which there can be reasonable disagreement. The possibility of reasonable disagreement would then suffice to satisfy this less demanding requirement. I am indebted to Jason T. Eberl for suggesting this modified reasonability requirement.

  25. Card’s suggestion that I have a “fundamental commitment” against assessing reasons is puzzling [39, p. 223]. He quotes my claim that “respect for moral integrity requires granting health care professionals considerable latitude concerning what is and what is not a valid reason for a conscience-based refusal to provide a particular good or service” [6, p. 92; 40, p. 223] (emphasis added), and he cites three constraints on reasons that I accept: “Wicclair makes clear that objectors’ reasons will not be subject to assessment in any case unless the objection is (1) an example of invidious discrimination, (2) based on beliefs contrary to the goals of medicine or (3) based on demonstrably false clinical beliefs” [39, p. 223] (citing [6, pp. 92–94]). As the quoted statements clearly indicate, I do not have a “fundamental commitment” against assessing reasons. The primary difference between our views about assessing reasons is the requirement that objectors must be able to offer a satisfactory public justification of their grounding reasons. Card accepts it, and I do not.

  26. A review of one’s reasons for conscientious objection can serve a useful function without having to subject objectors to the rigorous scrutiny Card recommends. A review can help objectors reflect on their reasons for objection and determine whether their basis is moral or otherwise; and if their reasons are moral, a review can help objectors distinguish between core and peripheral moral convictions [25]. For example, Meyers and Woods report a case in which a hospital ethics committee review revealed that some objections to abortion were not conscience-based [34], with reasons including financial considerations and concerns about patient perceptions.

  27. Card asserts that the “reasonable conception of the good” requirement is based on Rawls’ ideal of “public reason.” However, as Card rightly acknowledges, this ideal applies to deliberations about basic social structures: “when organising the basic institutional structure of society, we can rightly ask that individuals only act upon reasonable conceptions of the good” [39, p. 223]. Objecting physicians do not address basic institutional arrangements; they only request an exemption from performing a medical service. Therefore, it is questionable that the Rawlsian public reason ideal applies to them.

  28. In his response to Marsh, Card fails to address this problem because he defends only two criteria for assessing grounding reasons: They must be “genuine,” and they must be “consonant with relevant empirical data” [38, pp. 322–323]. Hence, Card does not address the problem of specifying clear and defensible criteria for assessing normative grounding beliefs (i.e., determining whether they are “reasonable”).

  29. Giubilini provides several alternative statements of his thesis:

    There is no principled reason to justify conscientious objection, qua conscientious, in healthcare. [43, p. 407]

    There is no principled reason to grant conscientious objection in healthcare qua conscientious, i.e. there is no principled reason whereby the value of conscience can by itself justify doctors’ objections. [43, p. 401]

    If there are (moral) reasons to accommodate objections in healthcare, these cannot be based on the special value attributed to conscience, understood as a formal notion. [43, p. 407]

    He also offers the following definition: “By ‘principled reason’ to respect conscientious objection qua conscientious I mean moral reason to respect conscience” [43, p. 401]. The meaning of these claims is somewhat opaque. However, I believe it is fair to understand Giubilini to be arguing that claims of conscience do not provide a pro tanto moral reason for accommodation.

  30. A physician’s moral integrity would be at issue in either case only if the relevant moral beliefs were core moral convictions.

  31. Two additional conditions are: (1) the objection cannot be based on invidious discrimination, and (2) the objection cannot be based on demonstrably false clinical beliefs [6].

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Wicclair, M.R. Preventing conscientious objection in medicine from running amok: a defense of reasonable accommodation. Theor Med Bioeth 40, 539–564 (2019). https://doi.org/10.1007/s11017-019-09514-8

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