Conscientious objection, the referral requirement and morally permissible moral mistakes

By Nathan Emmerich

In a recent paper, Nir Ben-Moshe suggested that the problems of moral complicity associated with conscientious objection—such as those generated by requiring those who conscientiously object to the termination of pregnancy or to voluntary assisted dying to refer patients to non-objecting providers—are in need of a ‘a creative solution.’  My paper Conscientious Objection and the Referral Requirement as Morally Permissible Moral Mistakes presents one such an attempt at providing such a solution.

The view I advance is that even if one considers providing patients with contact information for those who will provide a service one considers morally objectionable to entail a degree of moral complicity with that service this should not necessarily mean one should refuse to provide patients with a referral. I argue that conscientious objectors can consider the provision of a referral as a morally permissible moral mistake. This notion was first advanced by Harman and, similar to super- and sub- erogation, is something that can facilitate a more nuanced ethical theory, one that better reflects the complexities embedded in our shared, but nevertheless pluralist, moral reality.

It is commonly assumed that our actions can either be morally right, morally wrong or morally neutral. As a result, they are either permissible or impermissible. However, the notion of a morally permissible moral mistake suggests that it may be permissible to act in a morally wrong manner. This can, for example, be due to the prevailing socio-cultural conditions and the demands they place upon us. Consider, for example, the morally motivated vegan. Such individuals face clear challenges when it comes to living by their moral code. Whilst avoiding direct consumption of animal products it is clear that they have little choice but to patronise business that profit from the sale of such products. Equally, vegans cannot expect not to interact or be friends with those who do not consider veganism to be morally required. Whilst a vegan might choose the vegan option in a restaurant, their dining companion may not. Should vegans reject the common practice of splitting the bill due to the moral taint that might accrue?

Taking the view that vegans should not worry about the morality of splitting restaurant bills, my paper argues that whilst referring patients for a procedure that one finds objectionable may be morally mistaken, but it can nevertheless be considered morally permissible to do so. In the first instance, a referral may ease or facilitate access, but it is unlikely to prevent the morally objectionable intervention from occurring. In the second instance, one should respect the moral beliefs of others. Indeed, it seems particularly important to do so when one is asking for the same kind of respect to be extended towards oneself. This is the position conscientious objectors are in, precisely because it is they who are demurring from the mainstream or established moral perspective.

Interestingly, a similar argument can be made in regards our acceptance of conscientious objectors themselves. There are those who think that we should not accommodate the views of individuals who seek to conscientiously object in healthcare; that we should reject their moral claims as incompatible with the clinician’s commitment to professionalism. Certainly, making such accommodation is, at best, a source of inconvenience to both other healthcare professionals and, most importantly, to the patients who encounter conscientious objectors when seeking to access particular services. This being the case one might think that there is something morally wrong about allowing conscientious objectors to refuse to provide legal services. Nevertheless, one might still consider accommodating the claims of conscientious objectors if, as I argue, doing so can be considered in terms of a morally permissible moral mistake.

The view I advance is, of course, another compromise position and is therefore consistent with most of the literature on conscientious objection. However, it points towards a potential source of renewal. First, it substantiates the notion of compromise and provides some assistance in thinking through what kind of compromises should be accepted and which should not. Second, my approach further suggests that debates about conscientious objection ought not be seen as a matter of ethics alone, they are also a matter of politics. Properly understood whether and how the claims of conscientious objectors should be accommodated are a matter of ethico-politcal debate. As such, we should accept that there is a legitimate variation to the way we regulate conscientious objection, both in healthcare and in other areas of modern life.


Paper title: Conscientious objection and the referral requirement as morally permissible moral mistakes

Author: Nathan Emmerich

Affiliations: Senior Lecture in Bioethics, The School of Medicine, Australian National University.

Competing interests: None

Social media accounts of post author(s): @BioethicsAus

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