Conscientious Objection Accommodation in Healthcare – Clashing Perspectives

by Brian D. Earp / (@briandavidearp)

On behalf of the Journal of Medical Ethics, I would like to draw your attention to the current issue, now available online, which is almost entirely dedicated to the vexing question of conscientious objection in healthcare. When, if ever, should a healthcare provider’s personal conviction about the wrongness of some intervention (be it abortion, euthanasia, or whatever) be accommodated?

In a paper that has already attracted much attention, Ricardo Smalling and Udo Schuklenk argue that medical professionals have no moral claim to conscientious objection accommodation in liberal democracies.

In part, they base their argument on their judgment that “the typical conscientious objector does not object to unreasonable, controversial professional services—involving torture, for instance—but to the provision of professional services that are both uncontroversially legal and that patients are entitled to receive” (emphasis added).

It seems clear that a lot hinges on what is meant by “unreasonable” there–and on who should get to decide what falls under that label. One answer to this question might be, “society should get to decide, through the enactment of laws, which ideally express the view of the majority of people as to what is reasonable or unreasonable in medical and other contexts.”

“Therefore,” this answer continues, “if a doctor thinks that some legally allowed service X is immoral, then she should rally her fellow citizens to lobby their representatives to change the relevant law; but she should not be excused from providing the service, if by law the patient is entitled to receive it.”

“And if she really doesn’t want to do X,” the answer concludes, “she can always leave the profession and take up some other line of work.”

This is a rough summary of what Smalling and Schuklenk do in fact say. I’d be curious to hear what people think. My hunch is that a person’s attitude toward the answer (i.e., whether they see it as good and convincing or not) will depend in large part on what they substitute for “X” in their minds when thinking about conscientious objection.

The example that is almost always at the foreground of this debate is “abortion,” and the conscientious objector is usually imagined–at least by those who argue against her accommodation–to be a deeply religious person who thinks that abortion is wrong, if not the equivalent of murder. If religious people’s beliefs were routinely accommodated in such a context, the argument goes, many women would not have access to an important aspect of their healthcare (as it is usually framed) to which they have a right. Therefore, conscientious objection should not be accommodated.

But what if you substitute something else for X, and imagine a different kind of objector? In their contributionShimon Glick and Alan Jotkowitz reveal to the reader that, despite being religiously observant themselves, they “recognise and respect the consciences of atheists as well.” They go on to ask, “How would the authors react to physicians who refuse to perform genital mutilations such as circumcision, either male or female, which may be part of the services offered by the health agencies of liberal democracies?”

Smalling and Schuklenk respond by pointing out some conditions they had laid down in their original piece: “the patients must be volunteers; the patient must be entitled to access the services; and the objection must be on private moral or religious grounds.”

So, they go on to state, “Our argument is not addressing situations where eligible patients are not requesting a particular medical service. This renders the authors’ reference to issues such as involuntary euthanasia or female genital mutilation a moot point. Further, the patients must be legally entitled to receive such services.”

I found this response a bit weird. First, Smalling and Schuklenk dodge on the issue of male circumcision (or “male genital mutilation” in the words of Glick and Jotkowitz), and go straight to “female genital mutilation” which is much more widely condemned. They then lump such “mutilation” in with “involuntary euthanasia” as something that clearly fails to meet their criterion that “the patients must be volunteers.”

Here is what I found confusing. First, it seems that Smalling and Schuklenk simply assume that “female genital mutilation” is always performed on a person who hasn’t volunteered. But the World Health Organization does not distinguish between minor girls and mature women in its definition of “FGM,” thereby creating a rather tricky situation for so-called female genital cosmetic surgeries, such as labiaplasty performed on consenting adults.

I wonder what Smalling and Schuklenk would say about that case — is it OK to object to cutting the healthy genitals of an adult female “patient” on conscience grounds, because you regard such cutting as a form of mutilation (or as something that reinforces unjust social norms, etc.)? If so, should your objection be accommodated?

And what about male circumcision? In Western countries, this is primarily done to healthy boys for cultural or religious reasons: Should we say the “patient” has not “volunteered”? If we should say that, then perhaps doctors do have a moral claim to conscientious objection accommodation if they refuse to perform circumcisions–or any controversial procedure–on a minor. But then, why would Smalling and Schuklenk skip over that example? It seemed key to the rhetorical question raised by Glick and Jotkowitz.

Who knows. It’s a fascinating debate. As you will see from the collection of papers below, there are a lot of “sides” to this debate worth exploring. Check out the following sample of articles in this month’s issue of the Journal of Medical Ethics.

Conscientious objection in healthcare: new directions

Steve Clarke

Further clarity on cooperation and morality

David S Oderberg

Mere sincerity

Edward Collins Vacek

A reasonable objection? Commentary on ‘Further clarity on cooperation and morality’

Trevor G Stammers

Response to commentaries: ‘Further clarity on cooperation and morality’

David S Oderberg

Conscientious objection in healthcare and the duty to refer

Christopher Cowley

Conscientious objection in healthcare: why tribunals might be the answer

Jonathan A Hughes

Conscientious objection in healthcare, referral and the military analogy

Steve Clarke

Reasons, reasonability and establishing conscientious objector status in medicine

Robert F Card

Rationing conscience

Dominic Wilkinson

Cosmetic surgery and conscientious objection

Francesca Minerva

Why medical professionals have no moral claim to conscientious objection accommodation in liberal democracies

Udo Schuklenk, Ricardo Smalling

Selling conscience short: a response to Schuklenk and Smalling on conscientious objections by medical professionals

Jocelyn Maclure, Isabelle Dumont

Two conceptions of conscience and the problem of conscientious objection

Xavier Symons

Response to: ‘Why medical professionals have no moral claim to conscientious objection accommodation in liberal democracies’ by Schuklenk and Smalling

Shimon M Glick, Alan Jotkowitz

Response to: ‘Why medical professionals have no moral claim to conscientious objection accommodation in liberal democracies’ by Schuklenk and Smalling

Richard John Lyus

Against the accommodation of subjective healthcare provider beliefs in medicine: counteracting supporters of conscientious objector accommodation arguments

Ricardo Smalling, Udo Schuklenk

Conscientious refusal in healthcare: the Swedish solution

Christian Munthe

The BMA’s guidance on conscientious objection may be contrary to human rights law

John Olusegun Adenitire