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A Conscience Clause with Claws

16 Dec, 11 | by Iain Brassington

There’s a flurry of papers on conscientious objection in the latest JME: Giles Birchley argues, taking his cue from Arendt, that conscientious objection has a place in medicine here; Sophie Strickland’s paper on medical students’ attitude to conscientious objection (which I mentioned in July) is here; and Morten Magelssen wonders when conscientious objection should be accepted here.

All this is coincident with the recent passing of the “Protection of Life” Bill by the American House of Representatives.  This also has a significant clause about conscientious objection: I’ll come to that  in a little while.

Magelssen claims that conscience is important for integrity, and there is a social interest in protecting integrity.  His position is that objections should be accepted if

1. Providing health care would seriously damage the health professional’s moral integrity by (a) constituting a serious violation (b) of a deeply held conviction.

2. The objection has a plausible moral or religious rationale

3. The treatment is not considered an essential part of the health professional’s work

4. The burdens to the patient are acceptably small ((a) The patient’s condition is not life-threatening; (b) Refusal does not lead to the patient not getting the treatment, or to unacceptable delay or expenses (c) Measures have been taken to reduce the burdens to the patient)

5. The burdens to colleagues and healthcare institutions are acceptably small

As elaboration, he claims that “[a]n objection does not have a plausible rationale if it is based on erroneous factual premises”.  I worry a little about this: some false statements are implausible (the insistence of the man who works down at the chip shop that he’s Elvis, for example), but others are not (“The Higgs Boson has a mass in the region of 300 GeV” is probably false, but was until recently – until we had a reason to believe it falsea perfectly plausible thing to say); still others are implausible but actually true (“An electron exists in all theoretically possible states simultaneously, but measurement will yield a result corresponding to just one of them”: hence Schrödinger’s cat paradox).  It’s a slightly puzzling thing to say in respect of conscientious objection, too: there might be any number of religious positions that forbid doing A, even though they’re mutually incompatible and so, at most, only one can be true; but, presumably, if we take conscientious objection seriously, it doesn’t hinge on the actual truth of what a person believes.  At the same time, how are we to deal with a person’s earnest statement along the lines that his religion forbids A, when other members of the religion disagree?  It’s true that he believes it forbidden; we need to be able to separate the truth of “I believe this to be forbidden” and “This is forbidden”.  Failure to do that would mean there’d be no way to work out what was plausible.

And, while it might be true of decent societies that they allow moral dissent (Magelssen talks about democracies, but I see no reason to suppose that you can’t have a decent non-democracy), I’m also a little wary of making too easy a leap from this to medicine.  After all, you don’t get a choice about living in a society of some kind; but noone forces you to enter medicine, and even less are you forced to enter a particular speciality.  If you object to, say, terminations, then it’s not crazy to suppose that you probably ought to stay out of obs and gynae, career-wise.

Birchley’s paper is concerned precisely about career dynamics, and claims that a right to object based on an ayenbite of inwyt is important in hierarchical institutions such as hospitals: it allow juniors to demur from the demands of their seniors, taking into account that those seniors might have become less likely to recognise legitimate ethical concerns over the course of the process of becoming senior.  Thus

a right to object conscientiously protects individuals from participation in immoral acts they lack the institutional power to challenge effectively.

There’re aspects of the paper that seem uncomfortably close to Kass’ “wisdom of repugnance”, and so are likely to attract substantially the same kind of objection – especially the claim that the voice of conscience is not the voice of reason, and is not subordinate to it.  The claim that “the revulsion that manifests in the voice of conscience is resolutely immune to reason” comes alongside a claim that that voice of conscience can still be challenged by reflection, and that “it is reflection on our experiences, rather than appeals to reason, that will provide that challenge” – but I’m unsure how mere reflection has any normative power: without some kind of regulator, all we’re saying is, “First I thought this, then I thought that, and I still do”.  To go beyond that, you need something normative – and reason seems like a reasonable plug to fill the gap.

Anyway: on to the American legislation.  The Bill states that

No funds authorized or appropriated by [the Paitient Protection and Affordable Care] Act … may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except–
(A) if the pregnancy is the result of an act of rape or incest; or
(B) in the case where a pregnant female suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the female in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself.

The Paitient Protection and Affordable Care Act is a major plank of Obama’s healthcare reforms.  That the provisions outlined above have been suggested isn’t really much of a surprise.  However, the PL Bill continues to require that

A Federal agency or program, and any State or local government that receives Federal financial assistance under this Act (or an amendment made by this Act), may not subject any institutional or individual health care entity to discrimination, or require any health plan created or regulated under this Act (or an amendment made by this Act) to subject any institutional or individual health care entity to discrimination, on the basis that the health care entity refuses to–
(A) undergo training in the performance of induced abortions;

(B) require or provide such training;

(C) perform, participate in, provide coverage of, or pay for induced abortions; or

(D) provide referrals for such training or such abortions.

Life Site News talks about this clause in terms of “strengthened conscience rights for health care providers”; CNS News frames it in terms of “protect[ing] health care providers who are opposed to abortion for moral or religious reasons”.  A cursory reading might lead us to interpret this as a fairly common-or-garden conscience clause; but what’s important not to forget is that not all terminations of pregnancy are elective: some of them are required in order to save the life of the pregnant woman.

For this reason, there would seem to be a coherent moral position that says that it’s one thing to allow people to opt out of performing elective terminations; but quite another to allow them to opt out of performing any terminations whatsoever, or to opt out of training in how to provide them.  You might think that the deliberate ending of a human life for elective reasons has no place in medicine; but even if you do think that, it’s a long way from thinking that the equivalent procedure in an emergency situation has no place in medicine.  Yet the Bill does seem to allow medics to refuse to participate in terminations even when the mother’s life is at stake.  And so it’s not a common-or-garden conscience clause after all.

Ophelia Benson notes that “the legislation would make it legal for health care providers – including hospitals, not just individuals – to refuse to do abortions even to save the woman’s life”, and enjoins us to “[n]otice the complete failure to mention that this ‘strengthening’ means legalizing the refusal to do an abortion to save a woman’s life“.  I think she’s on to something; and it’s in this sort of context that Magelssen’s paper is troubling.  As I just suggested, it’s not obvious that someone who voluntarily goes into medicine can legitimately claim the kind of “protection” that the Bill provides: granted that sometimes saving a life may require terminating a pregnancy (and there’re even Catholic theologians who’ll accept the permissibility of removing an innocent threat), not to learn how to do it seems like a massive dereliction of duty, and not one that’s easy to square with the ethos of medicine.  And if you’re working in a discipline where you’re tolerably likely to have to perform a termination, but object to doing so… well, you’ve chosen the wrong discipline.  Maybe dermatology or nephrology or immunology would be more up your street.

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  • http://www.facebook.com/ophelia.benson Ophelia Benson

    The really frightening thing about the legislation is that it applies to “health care providers” – which includes hospitals. It would make it legal for whole *hospitals* to refuse to perform even life-saving abortions. That's not just a matter of finding another doctor or nurse within a hospital, it's a matter of finding another hospital – which in the sprawling US may mean one hours away.

    A Catholic bishop in Phoenix Arizona took away the “Catholic standing” of St Joseph's hospital last year because it performed a life-saving abortion and because it refused to give the bishop a written promise never to do so again. It's blood-curdling.

    The only good news is that the legislation is unlikely to pass the Senate. In the future, though…

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    You're right – that is, to say the least, strange.  I suppose that, in a private healthcare system such as America's, there might be scope to argue that people who set up hospitals can choose what they'll treat to some extent, just as someone who opens a shop can sell or not sell whatever he wants… but the obvious counterargument to this is that a DIY shop that refused to sell certain basic bits of hardware wouldn't, really, count as a DIY shop; and a hospital that refused to perform certain life-saving procedures wouldn't really count as a hospital, either.

  • Morten Magelssen

    Thank you for an interesting blog entry and thougthful comments on my JME paper. Your worry about 'erroneous factual premises' is warranted. Perhaps I should have written '[a]n objection does not have a plausible rationale if it is based on DEMONSTRABLY erroneous factual premises'.

    As for emergency abortions to save a woman's life, opting out of performing such a procedure due to conscientious objection would conflict with my criterion 4a which you quoted above, and thus would not be warranted. Let me see if I have understood you correctly: I take it that your point is that a gynecologist who objects to elective terminations would also, in effect, have objected to the practical training necessary to perform the emergency surgery as well – and when the occasion arises when emergency termination is needed, reliance on theoretical knowledge of abortions (something that the gynecologist cannot reasonably object to aquiring) is clearly insufficient for performing the procedure safely?

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    There are stories – anecdotal, but there nonetheless – about students objecting even to learning about certain procedures theoretically: Sophie Strickland's paper touches on this.  Theoretical knowledge is knowledge all the same, and better than nothing.

    I think my concern's a bit deeper.  I know that some may want to go into obs and gynae because they find it a fascinating discipline in a way that – say – gastroenterology isn't.  However, I think it's also reasonable to assume that, in their capacity as gynaecologists, it's likely that they'll have to perform the odd termination.  If they object to that, then one has to wonder whether they ought perhaps to choose another discipline overall – especially, but not only, if their objection extends to emergency procedures; and note that the American Bill would extend the right not to participate in those emergency procedures.  Indeed, there might be a particular kind of deontologist – a rather dour sort – who refuses to distinguish between emergency and elective terminations, on the grounds that killing is killing, and he wants to keep his hands clean.

    I mentioned this in my earlier post on conscientious objection.  This sort of attitude seems to be morally problematic not just because of the health consequences for the woman, but also in a kind of Aristotelian way.  There's something vicious and dogmatic about refusing even to learn things; and something un-collegiate about expecting your colleagues to do all the (actually fairly mundane) procedures that you'd rather not.  And, of course, refusing to participate doesn't make the abortion go away: it just means it'll be done in a less safe place.  Even if you disagree with an action, I think that there might be considerations about at least minimising its risk that mean that you'd have to hold your nose and accept it in preference to the alternatives.

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