The end of conscientious objection?

A relationship counsellor, Gary McFarlane, 48, in Bristol was sacked in 2008 for refusing to provide sex therapy to a gay couple. He took action against his former employer, Relate Avon, arguing that it had failed to accommodate his Christian beliefs. He lost, appealed and his appeal has just been turned down by the High Court.

Lord Justice Laws said legislation for the protection of views held purely on religious grounds cannot be justified. He said it was irrational and "also divisive, capricious and arbitrary".

This decision is at odds, logically at least, with the protection currently given to conscientious objection in medicine. Doctors are allowed to refuse abortion services and pharmacists sometimes refuse to supply emergency contraception on religious grounds. I have argued that these practises are immoral (see blog and articles), yet they continue to occur. Pregnant women are denied available services to plan their family because of the religious beliefs of the health practitioner. This kind of denial of service is similar to denying couples sex therapy who need it – both are legal, beneficial, desirable services.

What we might conclude from this case is that if the NHS sacked doctors who conscientiously object to provide abortion services, as Relate Avon sacked Mr McFarlane, those doctors would not have legal appeal that their religious views had been insufficiently recognised.

Or are doctors special?

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3 Responses to The end of conscientious objection?

  • Dennis Tuchler says:

    The moral or ethical question (they’re the same except for self abuse and suicide) depends on the culture in which you learn your ethics/morals, including the general idea of what is important in the area of personal services. I am and American and, consequentially, a moderate individualist. So I take the side of the individual who serves, and hope that the market provides enough sources of service to accommodate all.

    I went for a vasectomy to a urologist who refused because he is Catholic. He did not care what my religion is. He simply applied Catholic teaching and that was that. I did not find his conduct at all wrongful (my wife did!) but there are lots of urologists around and some of them are not Catholic, indeed, not Christian. There is a difference in a small town, I suppose, and the question is abortion rather than vasectomy (I doubt if you find many urologists practicing in small towns). In the US, we don’t treat physicians and surgeons as public utilities, required to take all customers. In Canada and the UK, the form of health care regulation makes physicians and surgeons more like public utilities.

    There is a debate going on among some lawyers and law professors and ethicians about the rightness or wrongness of compelling drug stores to sell contraceptives or abortifacients. A case arose about the employee of a drug store who refused to sell an abortifacient to a woman who had unprotected sex recently. I thought of it as an employment problem, and had no problem with her being fired if she refused to sell what was on offer. I have a slightly different take on it if she is the only clerk in the store. In the latter case, I am conflicted.

    An American would (should) probably object (at least initially) if you forced a professional of any sort (or a skilled tradesman who provides individualized services but not a neighborhood grocer or local shop or department store company) to serve everyone. Some libertarian and classical liberal types who detest racism, nevertheless are bothered by affirmative action and compelling retailers and property sellers to sell without regard to race. I suspect a Brit would think that the individual owes all a duty of decency, but should not be required by law to serve those to whom the individual objects. But not physicians or surgeons or even drug stores. I suspect you’d get the same response in Canada, which has effectively nationalized medicine.

    I would side with the objecting physician. But that’s because I’m a bourgeois Yank.

  • Peter Wicks says:

    Dennis, your distinction between Americans on the one hand and Brits/Canadians on the other seems somewhat simplistic, although possibly true on average. As a Brit (living in Brussels), I find this an interesting ethical question. I’ve argued earlier that ethics and morality are essentially a matter of choice, and this obviously applies here, but even from my own ethical standpoint I can see both sides of this one. What I am clear about is that the same principles should apply for doctors and other services providers. I suspect that the reason they don’t for the moment (apart from the lack of legal challenge in the case of doctors implied by Julian) is that doctors hold a much more respectable and essential position in society than sex therapists (not that I have anything against the latter). By the way, are we sure the current NHS policy hasn’t been subjected to a legal challenge already? I find this somewhat surprising.

  • Peter Wicks says:

    Just to add: the title of this post seems a bit misleading in its comparison with conscientious objection. It’s not as if either the doctors or sex therapists are being required to kill anyone, or to risk life and limb. Come to think of it, some would obviously dispute that in the case of abortion or even contraception, so maybe that’s the key: it’s not that doctors are different, but rather that there are stronger ethical grounds for allowing people to refuse abortions or emergency contraception than to discriminate against gays. That kind of makes sense to me.

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